Contrary to what you may think, a body corporate does not have any power under legislation to tow your vehicle. Any action to tow a vehicle would need to be based on general law akin to an action for trespass or nuisance and you would have a legal right to any damages suffered by you in that regard.
Where the Body Corporate believes that you have breached its by-laws by leaving your vehicle on common property or at an unauthorised location, there are specific steps that it must take in order to enforce the by-laws against you. These steps are as follows:
1. Issue a Contravention Notice
The Body Corporate must first send a contravention notice to you warning that you are in breach of the body corporate by-laws. The body corporate is then responsible for taking action if the contravention notice is not complied with.
2. Arrange a Conciliation Conference
In a conciliation conference, an independent person who understands body corporate law (a conciliator employed by the Department of Justice and Attorney-General) helps you and the other parties to try and resolve your dispute.
3. Refer Matter to Adjudication
For issues that fail to resolve at conciliation, the majority will be determined at Adjudication level. Adjudication is a more formal process than conciliation. An adjudicator makes a decision after considering the application and written submissions from all those affected by the dispute (for example see Freedom Terraces v Matthews ).
4. Magistrates Court
Should an Adjudicator issue an Order in relation to your dispute and that order is still not complied with, then the Body Corporate can apply to the Magistrates Court to enforce the adjudicator’s order. The court can impose fines of up to $52,220.00 for failure to comply with an order.
The body corporate is only within its rights to tow your boat if it follows the correct legislative process as outlined above, namely issuing a contravention notice and then seeking orders from an adjudicator.
If the body corporate tows your boat/trailer without an adjudicator’s order you will be entitled to commence proceedings against the body corporate for any loss or damage suffered by you.
If you need further information about body corporate issues, get in touch with the commercial team at Preston Law.