Towing and clamping
Ultimately, whether the vehicle is owned by a resident or non-resident is irrelevant in relation to the rights of the Owners Corporation to tow it away or apply a wheel clamp to it.
Section 90C of the Road Safety Act 1986 (“RS Act”) provides that: (1) A person, not being—
(a) a police officer; or
(ab) an authorised person under Part 6A; or
(b) the sheriff or any other person authorised by law to execute a warrant against the motor vehicle; or
(c) a person authorised to do so by or on behalf of the owner or driver of the motor vehicle—
must not detain or immobilise (whether by wheel clamps or any other means) a motor vehicle that has been parked or left standing (whether attended or not) on land to which this section applies.
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For the avoidance of doubt, the common property of an Owners Corporation is land to which this section applies and the Owners Corporation is not an authorised person for the purposes of this section.
Accordingly, in relation to wheel clamping, the law is clear and the Owners Corporation cannot do it to any vehicle. As an aside, we note that even if it were allowed, clamping the wheel does not achieve the primary aim of having the car moved off the common property and the Owners Corporation would not have the legal right to demand any payment in return for the clamp being removed.
While there may be an argument that an Owners Corporation that authorises a towing company to tow a vehicle away is not technically detaining or immobilising the vehicle, as it is not the party carrying out the act of towing, in our view this is a weak argument. The towing company does detain the vehicle when it tows it (arguably as an agent of the Owners Corporation), so the Owners Corporation is essentially authorising and facilitating a breach of section 90C of the RS Act by engaging the towing company.
Further, both towing and applying a wheel clamp will likely constitute a trespass to property and the Owners Corporation will be liable for any damage caused to the vehicle, regardless of the fact that it was parked illegally.
In relation to vehicles owned by residents, the Owners Corporation has the usual remedies available to it for a breach of rules. If the Owners Corporation knows who owns the vehicle, it should serve a complaint on the vehicle owner and go through the dispute resolution process as set out in the rules. If no resolution can be achieved, the Owners Corporation can then make an application to VCAT for an Order requiring the owner of the vehicle to cease parking illegally on common property and an Order that he/she pay a civil penalty. If the owner then breaches the Order by leaving the car on common property again, he/she can theoretically be held in contempt and fined by VCAT.
The bigger problem arises when the Owners Corporation does not know who owns the vehicle and/or the vehicle is abandoned. In these circumstances, all that the Owners Corporation can do, from a legal perspective, is to make an Application to the Magistrates’ Court for an Order enabling them to move/tow the vehicle. While this is an expensive and time-consuming process, unfortunately, there is simply no legal manner in which the Owners Corporation can unilaterally decide to tow away a vehicle.
Having said that, if the vehicle is registered then the Owners Corporation should, as a first step, call the police and ask the police to contact the owner to have the car moved. The police may also move a vehicle in circumstances where the vehicle is blocking a driveway or right of way.
Another option is for an Owners Corporation to enter into an agreement for parking enforcement under section 90D of the RS Act with its local Council. The agreement essentially allow Council officers to issue fines and infringement notices to vehicles that have breached
the parking restrictions on common property. If an infringement notice has been issued and the owner of the vehicle has refused to remove the vehicle, a police officer may then arrange for the vehicle to be towed.
Not all Councils will enter into this types of agreement, so this is not an option for all Owners Corporations. However, where the option is available, it should be strongly considered by those Owners Corporations with continuous parking issues.
In summary, an Owners Corporation cannot legally tow or detain any vehicle parked on common property, whether it be owned by a non-resident or resident.
For vehicles of residents, the Owners Corporation can pursue the vehicle owner for a breach of the Rules.
For vehicles of non-residents, the Owners Corporation should contact the police in the first instance, but if the police are unhelpful, then the Owners Corporation will either need to:
Make an application to the Magistrates’ Court for an Order authorising the removal of the vehicle; or
Contact Council to enter into a parking enforcement agreement pursuant to section 90D of the RS Act.