Need help agreeing a policy on abandoned cars

gebbel

We are an apartment complex in Louth who are having problems with a couple of unused cars in the public parking areas. These cars are taking up valuable spaces and are promoting illegal parking elsewhere. Both cars have been parked up for at least 1 year, one of the owners starts the engine a few times every year to keep it ticking over...the other one not so. In both cases this is not their primary vehicle. The development does not have a policy on such cars, so at the AGM next week we will vote to integrate one into the house rules. The wording is proposed to be something like:

"Cars parked for a period exceeding 3 months which are clearly untaxed, uninsured and not being used will be deemed abandoned and in extreme cases may be towed".

Is this a fair policy? Is the wording adequate? In an ideal world I'd be all for letting the owners have more time to sort it out..maybe they are not in a great place financially and all that.....but the constrained world of apartment living does not allow for parking space to be wasted and therefore action is required.

Any thoughts welcome. I'm posting here instead of the accommodation forum as more interested in car owners' thoughts.

Del2005

I'd be consulting a solicitor for proper legal advice before implementing a policy that will possibly end up with removing residents property.

whippet

you are talking about removing people's property just because they don't use it? From the example you have given it clearly isn't abandoned.

Sounds like a problem with limited parking spaces .. how many spaces are reserved for each unit?

_Kaiser_

You can't remove someone's property because they're not using it - these cars aren't abandoned as said above.

You could however charge them for a second space? That may force them to either pay up or get rid of it.

9935452

_Kaiser_ wrote: »

You can't remove someone's property because they're not using it - these cars aren't abandoned as said above.

You could however charge them for a second space? That may force them to either pay up or get rid of it.

I could see that back firing . There are probably other households there that have 2 or more cars that will have to pay for a second or third space and they would get pissed off with that

gebbel

Each unit has 1 parking space allocated. Then there is overflow parking for visitors and second cars, but not enough spaces and certainly none spare. The issue here is 2 unused cars....both coincidentally 16 years old and I'd imagine almost worthless. The owners are renters who for whatever reason are clinging onto them.

At AGM rules and laws are made, amended or changed and once voted in...they become the law of the complex. So not sure solicitors advice is relevant here.

Cheensbo

gebbel wrote: »

.both coincidentally 16 years old and I'd imagine almost worthless.

Careful now :pac:

Carawaystick

How can a private company ( the omc) tell if the vehicles are not taxed or not insured?

ianob7

by reading the windscreen one would assume....

Graham

Might be useful taking a look at what other OMCs are doing: Linky

Vehicles which ARE allowed to park at XXXXXX – “Authorised Vehicles”

• In-Use Cars, Motorcycles, and Bicycles which belong to / are driven by Owners and Residents

--/snipped/--

Vehicles which ARE NOT allowed to park

--/snipped/--
Un-Used Vehicles which are owned / driven by Owners / Residents at XXXXXX, where it becomes clear to the Directors that such Vehicles are being stored in the Car Park whilst other Vehicles, also parked in the Car Park, are at the same time being used by said Owners / Residents as their Primary Transport Means

Obviously – Abandoned Vehicles or Stolen Vehicles -
• An “Abandoned Vehicle” is defined to be a Vehicle which has an expired Tax Disc, Insurance Disc, or NCT Disc – or all of the foregoing – and which the Management Company has, by affixing a Notice to the Vehicle, requested the Owner / Driver to clarify the circumstances of its parking at XXXXXX within 23 days – If such Vehicle is un-claimed within 23 Days of the date of such Notice being affixed to the Vehicle, the Vehicle will be deemed to be abandoned
• A “Stolen Vehicle” is defined to be a Vehicle for which the Gardai have confirmed as having been reported to them as being stolen
• In the case of Abandoned or Stolen Vehicles, they will be removed from XXXXXX, rather than being clamped.

Vic_08

gebbel wrote: »

Each unit has 1 parking space allocated. Then there is overflow parking for visitors and second cars, but not enough spaces and certainly none spare. The issue here is 2 unused cars....both coincidentally 16 years old and I'd imagine almost worthless. The owners are renters who for whatever reason are clinging onto them.

At AGM rules and laws are made, amended or changed and once voted in...they become the law of the complex. So not sure solicitors advice is relevant here.

If there is an allocated space per apartment then either the leaseholder or if rented the tennant is the "owner" of that space and frankly it is none of your business what car they have parked in it.

Neither of these cars are abandoned as you put it, they are just not in everyday use. If they have the cars in the un-allocated spaces and are using their spaces for a regularly used car then that is taking liberties though.

elperello

gebbel wrote: »

Each unit has 1 parking space allocated. Then there is overflow parking for visitors and second cars, but not enough spaces and certainly none spare. The issue here is 2 unused cars....both coincidentally 16 years old and I'd imagine almost worthless. The owners are renters who for whatever reason are clinging onto them.

At AGM rules and laws are made, amended or changed and once voted in...they become the law of the complex. So not sure solicitors advice is relevant here.

Best to check what you are proposing as Bye-Laws with a solicitor before the meeting. It could save a lot of time and avoid problems.

While you are correct in saying that the Bye-Laws will effectively become the "law of the complex" they still must be grounded in law.

pa990

AFIK, the legal definition of abandoned, is when the legal owner cannot be contacted.

vaguely remember some case law regarding a tractor / farm machinery that was parked up in a field that was being rented.
It was basically scrap, but the guy renting the field fixed up the piece of machinery, and got it going, then the owner of the field claimed that it was his property, and the courts ruled in his favour.

Basically, unless the legal owner cannot be identified then its not abandoned, that is why Councils & Corporations don't tow "abandoned" cars unless the number plate has been removed.

Dravokivich

gebbel wrote: »

Each unit has 1 parking space allocated. Then there is overflow parking for visitors and second cars, but not enough spaces and certainly none spare. The issue here is 2 unused cars....both coincidentally 16 years old and I'd imagine almost worthless. The owners are renters who for whatever reason are clinging onto them.

At AGM rules and laws are made, amended or changed and once voted in...they become the law of the complex. So not sure solicitors advice is relevant here.

Your issue is with people who have multiple cars, regardless of the reason why. Picking on these 2 cars you are attempting to list as abandoned will not address that.

Graham

pa990 wrote: »

AFIK, the legal definition of abandoned, is when the legal owner cannot be contacted.

Assuming the plan is to have the cars towed away/clamped I'm not convinced a parking policy would need to meet any legal definition of abandoned. In this instance it's a descriptive title for cars which are not approved to park in the communal spaces.

gebbel

Looking at the policy from the Balgriffin complex above (thanks Graham)....they have made the notable distinction between an abandoned and an unused car. Their policy forbids:

"Un-Used Vehicles which are owned / driven by Owners / Residents at Grattan Wood, where it becomes clear
to the Directors that such Vehicles are being stored in the Car Park whilst other Vehicles, also parked in the
Car Park, are at the same time being used by said Owners / Residents as their Primary Transport Means".

The above perfectly describes our situation with the 2 vehicles.

gebbel

Dravokivich wrote: »

Your issue is with people who have multiple cars, regardless of the reason why. Picking on these 2 cars you are attempting to list as abandoned will not address that.

Good point. But at least unused or abandoned cars can more easily be dealt with. Once there is an agreed policy.

Vic_08

gebbel wrote: »

Good point. But at least unused or abandoned cars can more easily be dealt with. Once there is an agreed policy.

You know who the owners are, they live in the complex where the cars are located. They are NOT abandoned.

You still haven't stated if the cars are in the correct allocated spaces for the owners, if they are then there is nothing you can do about it.

Dravokivich

Vic_08 wrote: »

You know who the owners are, they live in the complex where the cars are located. They are NOT abandoned.

You still haven't stated if the cars are in the correct allocated spaces for the owners, if they are then there is nothing you can do about it.

They kind of mentioned it in a muddled up manner in the OP. In both instances these 2 cars, are the second cars of those owners.

Graham

Vic_08 wrote: »

if they are then there is nothing you can do about it.

My interpretation from the OPs posts is this relates to visitor/communal parking.

That said, allocated spaces are still subject to the rules defined by the OMC even if there is more of an argument to permit long-term parking up.

gebbel

Sorry should have clarified.

Case 1: rented unit with one parking space allocated outside his door. The unused car is parked there, actually for about 2 years. The owner occasionally starts the engine. His other primary vehicle he parks in the overflow car park.

Case 2: rented unit with the unused car parked up in the overflow car park and he parks his primary vehicle outside his door. It hasn't been moved in at least 1 year.

pa990

Graham wrote: »

Assuming the plan is to have the cars towed away/clamped I'm not convinced a parking policy would need to meet any legal definition of abandoned. In this instance it's a descriptive title for cars which are not approved to park in the communal spaces.

i agree, how ever that is my understanding of "abandoned"

perhaps the title of the thread should be changed to "unused" or god knows what

cruizer101

OP you might be better looking for advice in the Accommodation and Property forum as it relates more to that, I'm sure mods could move if you wanted up to yourself.

Has anyone tried approaching the owners to talk to them before going about changing rules and potentially getting into muddy legal waters.

Isambard

unless you are taking similar action on others who have two vehicles, I'm afraid it looks to me as if you are picking on these two guys.

gebbel

cruizer101 wrote: »

OP you might be better looking for advice in the Accommodation and Property forum as it relates more to that, I'm sure mods could move if you wanted up to yourself.

Has anyone tried approaching the owners to talk to them before going about changing rules and potentially getting into muddy legal waters.

Yeah probably in the wrong forum now...I'll get it moved or someone please move it for me.

In terms of talking to the owners....yes one of them was spoken to but got pretty defensive about it. Not sure about the other guy.

Stephenc66

gebbel wrote: »

Looking at the policy from the Balgriffin complex above (thanks Graham)....they have made the notable distinction between an abandoned and an unused car. Their policy forbids:

"Un-Used Vehicles which are owned / driven by Owners / Residents at Grattan Wood, where it becomes clear
to the Directors that such Vehicles are being stored in the Car Park whilst other Vehicles, also parked in the
Car Park, are at the same time being used by said Owners / Residents as their Primary Transport Means".

The above perfectly describes our situation with the 2 vehicles.

OP do you know in the case of the Balgriffin complex do the residents own a parking space? Are you comparing like with like?

Do your current rules mention anything about the use of "owned" parking spaces that might affect what you want to achieve with your new rules.

I am thinking in particular of case 1 as you describe. He is enjoying to use of his owned parking space and following the custom and practice of the other residents and using the overflow car park for his second car

Graham

Isambard wrote: »

unless you are taking similar action on others who have two vehicles, I'm afraid it looks to me as if you are picking on these two guys.

There's no particular anti-discrimination legislation the prevents 'picking on' the owners of abandoned cars.

Either way it sounds like the policy will be applied equally to all residents so not particularly discriminatory.

Graham

Stephenc66 wrote: »

I am thinking in particular of case 1 as you describe. He is enjoying to use of his owned parking space and following the custom and practice of the other residents and using the overflow car park for his second car

I'd be interested in a link to that case. Curious as to how custom and practice overrides the OMCs legal rights to change the rules.

Stephenc66

gebbel wrote: »

Sorry should have clarified.

Case 1: rented unit with one parking space allocated outside his door. The unused car is parked there, actually for about 2 years. The owner occasionally starts the engine. His other primary vehicle he parks in the overflow car park.

Case 2: rented unit with the unused car parked up in the overflow car park and he parks his primary vehicle outside his door. It hasn't been moved in at least 1 year.

Graham wrote: »

I'd be interested in a link to that case. Curious as to how custom and practice overrides the OMCs legal rights to change the rules.

Sorry Graham I should have been more clear I was referring to Case 1 in your previous post.

Playing devils advocate

Graham

Stephenc66 wrote: »

Sorry Graham I should have been more clear I was referring to Case 1 in your previous post.

Playing devils advocate

'owned' spaces would still generally be subject to the rules set down by the OMC.

Indricotherium

Graham wrote: »

I'd be interested in a link to that case. Curious as to how custom and practice overrides the OMCs legal rights to change the rules.

Custom and practice? Do you mean the law by that?

Graham

Indricotherium wrote: »

Custom and practice? Do you mean the law by that?

I was using a turn-of-phrase used by another poster, you'd have to clarify with them.

Marcusm

gebbel wrote: »

Sorry should have clarified.

Case 1: rented unit with one parking space allocated outside his door. The unused car is parked there, actually for about 2 years. The owner occasionally starts the engine. His other primary vehicle he parks in the overflow car park.

Case 2: rented unit with the unused car parked up in the overflow car park and he parks his primary vehicle outside his door. It hasn't been moved in at least 1 year.

I cannot see that you have any ability to determine what he parks in the allicated space outside his unit. Likewise seeking to impose parking rules retrospectively is a hard road if the unit holders and the lessees don't agree. A development I lived in had similar issues with respect to bicycle and motor bike parking. The OMC/landlord found that, having allowed the position to build up over a number of years, that they lacked the legal force to remove property which was not obviously abandoned. Some of the residents were solicitors/barristers and threatened to seek injunctive relief if the OMC proceeded..
You really need to take legal advice; if the cars are not obviously abandoned and the OMC permita one allocated space and unregulated use of the overfl A spaces, it seems hard to see how much t has the authority to discriminate between residents on the basis of a pattern of usage.

Cookie_Monster

gebbel wrote: »

The issue here is 2 unused cars.....

The actual issue is an un-realistic number of spaces per unit, why not try and fix that? Provide more parking and the problem solves itself.

Graham

Marcusm wrote: »

I cannot see that you have any ability to determine what he parks in the allicated space outside his unit.

Of course you cannot see unless the OP has given you a copy of the legal documents for the development.

Most developments provide for rules to be changed by the OMC (i.e. the owners of the properties within the development). If there's an issue with parking, it's quite likely the current owners will be quite supportive of any efforts to free up parking spaces occupied by effectively abandoned vehicles.

CalamariFritti

Have you tried to contact the owners?

Vic_08

Graham wrote: »

Of course you cannot see unless the OP has given you a copy of the legal documents for the development.

Most developments provide for rules to be changed by the OMC (i.e. the owners of the properties within the development). If there's an issue with parking, it's quite likely the current owners will be quite supportive of any efforts to free up parking spaces occupied by effectively abandoned vehicles.

In the case of one of the scenarios posted the "abandoned" car is in a space exclusively for the use of the person who abandoned it, removing it will not free up any spaces.

Just because the management co can change the rules doesn't make it legal. You cannot sell someone something (a parking space for example) then afterwards change the rules to disallow them from using it as intended.

FortySeven

Where exactly are the cars going to be towed to? I'm assuming to a breaker? Are they then implicated in any legal action if they dismantle the cars?

What are the make and models Graham?

Graham

Vic_08 wrote: »

You cannot sell someone something (a parking space for example) then afterwards change the rules to disallow them from using it as intended.

Were the tenants sold the space in addition to the space they are occupying with the other car?
Are the tenants subject to a head lease via their lease with the landlord?
Would the held lease be subject to the rules as may be varied from time to time by the owners via the OMC?
I doubt the rules were intended to permit someone to abandon a car in any space. It's not at all unusual to find parking spaces are subject to rules defined by a lease/head-lease etc etc etc...

Graham

FortySeven wrote: »

Where exactly are the cars going to be towed to? I'm assuming to a breaker? Are they then implicated in any legal action if they dismantle the cars?

I wouldn't assume that at all.

FortySeven wrote: »

What are the make and models Graham?

I have absolutely no idea, the OP may be in a better position to answer that question.

Marcusm

Graham wrote: »

Of course you cannot see unless the OP has given you a copy of the legal documents for the development.

Most developments provide for rules to be changed by the OMC (i.e. the owners of the properties within the development). If there's an issue with parking, it's quite likely the current owners will be quite supportive of any efforts to free up parking spaces occupied by effectively abandoned vehicles.

Of course it is subject to the documentation; it is equally clear that the car parked in a numbered space at the owner's front door is not abandoned, it is simply unused. It is unconscionable that the arrangements for the granting of a specified space within the curtilege of the property could be subject to a wholesale revusion of rules without consent. If it were the case that the car was up on bricks, with a broken windscreen etc, it might be argued that it is not being used for "parking". In the circumstances outlined in the OP, this appears not to be the case.

If the situation is such that there is abuse of the unallocated overflow parking, greater scope for its regulation would undoubtedly be available. However, if it is available to residents generally, including those who have an allocated space but with a second car, I hardly see it likely that it would be equitable to isolate the owner as suggested here.

Graham wrote: »

Were the tenants sold the space in addition to the space they are occupying with the other car?
Are the tenants subject to a head lease via their lease with the landlord?
Would the held lease be subject to the rules as may be varied from time to time by the owners via the OMC?
I doubt the rules were intended to permit someone to abandon a car in any space. It's not at all unusual to find parking spaces are subject to rules defined by a lease/head-lease etc etc etc...

But this is not abandonment; it is use of an asset, the right to a parking space, as (presumably) outlined in the lease. The OMC does not, obviously, have an enforceable right to make one sided amendments to the lease but it is entitled to make rules for the effective management if the development. These must be fair and equitable as between leaseholders, however. A targeted rule such as this seems likely to be capable of challenge. A leaseholder who has purchased a space could hardly be excluded from using an overflow space if they were made freely available to other residents. This is why in many developments, the overflow spaces are governed by rules such as parking only 3 days in 7 etc.

FortySeven

Graham wrote: »

I wouldn't assume that at all.



I have absolutely no idea, the OP may be in a better position to answer that question.

Sorry, my mistake. Hopefully he will be along shortly.

Graham

Marcusm wrote: »

If the situation is such that there is abuse of the unallocated overflow parking, greater scope for its regulation would undoubtedly be available.

coincidentally that appears to be the direction the discussion is leaning.

galwaytt

gebbel wrote: »

Sorry should have clarified.

Case 1: rented unit with one parking space allocated outside his door. The unused car is parked there, actually for about 2 years. The owner occasionally starts the engine. His other primary vehicle he parks in the overflow car park.

Case 2: rented unit with the unused car parked up in the overflow car park and he parks his primary vehicle outside his door. It hasn't been moved in at least 1 year.

Neither are abandoned, and you have no authority to interfere with them for any reason. In fact to do so would make you liable for a criminal offence (theft ).

And printing up a sign does not give you right or authority either way, especially after the fact.

Why how many vehicles anyone owns is any if you business escapes me.

Del2005

Cookie_Monster wrote: »

The actual issue is an un-realistic number of spaces per unit, why not try and fix that? Provide more parking and the problem solves itself.

So you want the OP to change the planning conditions that are applied to nearly every MUD, which is 1.5 spaces per unit regardless of size, in the country. Then if they manage to get the local council to change the planning conditions for the development, which will entail a whole new planning application, where are they supposed to get these extra parking spaces from?

Del2005

Marcusm wrote: »

Of course it is subject to the documentation; it is equally clear that the car parked in a numbered space at the owner's front door is not abandoned, it is simply unused. It is unconscionable that the arrangements for the granting of a specified space within the curtilege of the property could be subject to a wholesale revusion of rules without consent. If it were the case that the car was up on bricks, with a broken windscreen etc, it might be argued that it is not being used for "parking". In the circumstances outlined in the OP, this appears not to be the case.

If the situation is such that there is abuse of the unallocated overflow parking, greater scope for its regulation would undoubtedly be available. However, if it is available to residents generally, including those who have an allocated space but with a second car, I hardly see it likely that it would be equitable to isolate the owner as suggested here.



But this is not abandonment; it is use of an asset, the right to a parking space, as (presumably) outlined in the lease. The OMC does not, obviously, have an enforceable right to make one sided amendments to the lease but it is entitled to make rules for the effective management if the development. These must be fair and equitable as between leaseholders, however. A targeted rule such as this seems likely to be capable of challenge. A leaseholder who has purchased a space could hardly be excluded from using an overflow space if they were made freely available to other residents. This is why in many developments, the overflow spaces are governed by rules such as parking only 3 days in 7 etc.

Of course the OMC can make changes to the lease once they have enough members at the AGM or EGM, but they need legal advice to make sure that the changes are legally enforceable.

Marcusm

Del2005 wrote: »

Of course the OMC can make changes to the lease once they have enough members at the AGM or EGM, but they need legal advice to make sure that the changes are legally enforceable.

Rubbish; the lease is a contract between the landlord/OMC and the leaseholder and can generally only be changed with the consent of both h parties. The OMC may be entitled, under the provisions of the lease, to make and vary "house rules" for the proper administration of the development. I do not believe that any attempt to exclude a leaseholder from using a space allocated (or possibly demised) to him under the lease for the parking or a serviceable car is in any way capable of being varied under "house rules". The overflow/unalocated spaces might be more susceptible to better regulation.

If all it took to vary a lease was a majority and an EGM/AGM, residents could simply evict their troublesome neighbours. Not something which would be possible for n a country where private property rights are protected in the constitution.

If the road Sidney used the parking space for storing rubbish or installed a container or a burger van, it might be possible but to park a car - that's using it for its intended purpose under the lease just as much as sleeping in your bedroom or defecating in your toilet.

Indricotherium

Graham wrote: »

coincidentally that appears to be the direction the discussion is leaning.

Yeah regulating the overflow parking would seem to solve the whole problem?

m5ex9oqjawdg2i

gebbel wrote: »

At AGM rules and laws are made...

I highly doubt any laws are made during an AGM. A bit of an overstatement, no?

Well, regardless of whatever policy you implement, if the cars are parked on public property, you will have a hard time enacting them.

Also, the 2 cars are not "promoting illegal parking".

Graham

I can't help but think there's a rather large part of the discussion here that's entirely academic.

This is a development in Louth looking to solve in issue with 2 abandoned vehicles that are directly or indirectly causing spaces to be taken up in communal overflow parking.

Given the owners of these vehicles are tenants, there's no suggestion either of them are lawyers/barristers and their landlords are unlikely to go to Court on their behalf. It is entirely likely the members/shareholders of the OMC are going to vote in favour of any changes that will alleviate the parking issues and that will be the end of it.

Marcusm

Graham wrote: »

I can't help but think there's a rather large part of the discussion here that's entirely academic.

This is a development in Louth looking to solve in issue with 2 abandoned vehicles that are directly or indirectly causing spaces to be taken up in communal overflow parking.

Given the owners of these vehicles are tenants, there's no suggestion either of them are lawyers/barristers and their landlords are unlikely to go to Court on their behalf. It is entirely likely the members/shareholders of the OMC are going to vote in favour of any changes that will alleviate the parking issues and that will be the end of it.

Ha ha. What towing company is going to remove a car from an allocated space outside a house and what type of uproar is going to arise if the OP does manage to find someone to do it. It is simply not lawful irrespective of what motions are passed at an AGM. Cars are clamped in this country when parked inappropriately on private land for the simple reason that it is unlawful to move them except by a local authority or when clearly abandoned (properly abandoned meaning that the owner cannot be identified or has made it clear that it will not be returning for it) or with a court order.

The OP has made it clear that the cars are not abandoned merely parked in a manner objectionable to him. Even if the one in the overflow could be held to be a trespass, as the owner can be identified, if he chooses not to move it, the OMC would require a court order to interfere with the car. This is why any sensible towing company will not get involved.

What you are proposing is not a solution.