Case study Illegal parking in ungated apartment car park

[L_earner]

There is an interesting seventeen year-old thread entitled Parking and Trespass. This post is to give a case study of a similar situation.

We own a seaside apartment that has an ungated private car park. Airborne sea spray destroyed every gate mechanism we tried, so we resort to sternly worded signs advising drivers that our parking spaces are on private property and are for the exclusive use of residents.

On sunny weekends the beach is packed, and we are tormented by day trippers filling our car park, causing residents to drive some distance to find the nearest space on the road.

We have come up with a new approach, which is to leaflet offending drivers with a notice saying that by temporarily depriving the management company of a parking space, we suspect that they have committed the offence of Theft of Service, contrary to Section 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, adding that a person guilty of an offence under this section is liable on conviction to a fine or imprisonment.

The notice will give drivers two options. The first is to respond within 21 days (or longer if they ask) to give an explanation to the management company why we should not make a statement to the Gardaí, for example they may have been visiting a resident, either professionally or personally. The second is to give drivers the option of avoiding court by making a modest donation to the management company, which is of course a non-profit organisation.

I will post updates as we roll this out over the coming weeks. In the meantime I would welcome your comments and questions.

 

[NoRegretsCoyote]

Did you investigate the option of contracting a clamping company?

The law was changed in 2018.

 

[L_earner]

Did you investigate the option of contracting a clamping company?

The law was changed in 2018.

Thanks NoRegretsCoyote. No we don't want to get into that type of drama.

 

[Right Winger]

Section 5(2) of the Act might be a problem. You can't steal "land" and parking spaces are "land" for the purposes of law.

 

[fistophobia]

I would try a different and cheaper solution.
How about getting a big length of chain, hook it across the entrance., dont bother locking it.
That would be enough of a deterrent.

 

[DannyBoyD]

Thanks NoRegretsCoyote. No we don't want to get into that type of drama.

I think your leaflets are a bigger drama.

Chain or traffic cones can be surprisingly effective.

Even better acquire a 'dummy' clamp & put it on a residents car - nothing better than a visual message!

 

[NoRegretsCoyote]

No we don't want to get into that type of drama.

I'm curious as to why not? From what I can tell it's perfectly legal to contract a clamping firm in your situation.

It might not be cost-effective and there would be some legal risk. But it would be for sure far more effective than leaflets.

 

[L_earner]

Section 5(2) of the Act might be a problem. You can't steal "land" and parking spaces are "land" for the purposes of law.

Thanks RightWinger. It is true that the driver is not stealing in the way that Section 5(2) describes. After all, before and after they park there, the land is still the property of the management company.
What we are talking about is theft of a service that the management company provides for the exclusive use of the residents, a service for which they paid when buying their apartments, and for which they still pay through annual management fees and contributions to the sinking fund. Section 4(1) states that "a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it." While the defence can argue that the primary intent of the driver is to get a free parking space, the inevitable consequence is that the owner is deprived of that parking space. Given that there are signs prominently displayed advising that it is private property, the driver's mens rea is clear.
Section 4(5) defines the word appropriates to mean "usurps or adversely interferes with the proprietary rights of the owner of the property", and defines depriving as "temporarily or permanently depriving". The driver who uses one of these private parking spaces without implied or explicit consent might reasonably expect to pay a price for taking this chance.

 

[Luternau]

I like the idea or the fake clamp. Thst would put many off!
Considering the location,the leaflet approach won't stop new parking offenders.

 

[L_earner]

I would try a different and cheaper solution.
How about getting a big length of chain, hook it across the entrance., dont bother locking it.
That would be enough of a deterrent.

Thanks Fistophobia. The residents objected to this on the grounds that they are inconvenienced by having to get out of their cars every time they pass through the entrance.

 

[NoRegretsCoyote]

What we are talking about is theft of a service that the management company provides for the exclusive use of the residents, a service for which they paid when buying their apartments, and for which they still pay through annual management fees and contributions to the sinking fund. Section 4(1) states that "a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it." While the defence can argue that the primary intent of the driver is to get a free parking space, the inevitable consequence is that the owner is deprived of that parking space. Given that there are signs prominently displayed advising that it is private property, the driver's mens rea is clear.
Section 4(5) defines the word appropriates to mean "usurps or adversely interferes with the proprietary rights of the owner of the property", and defines depriving as "temporarily or permanently depriving". The driver who uses one of these private parking spaces without implied or explicit consent might reasonably expect to pay a price for taking this chance.

I know it's Ask About Law but this is a very esoteric. No one is going to understand this kind of legal argument make a voluntary donation to the management company.

If I were you or a neighbour I would be most interested in the least-effort, most effective solution for the problem. Your approach could well be it, I don't know! Let us know how you get on.

 

[L_earner]

I think your leaflets are a bigger drama.

Thanks DannyBoyD. Think of it this way. If you come back from the beach with partner and maybe children, you are probably tired, maybe a little stressed from your day, but you are looking forward to getting into your car and heading home. Which would you prefer, a leaflet or a clamp?

 

[L_earner]

I'm curious as to why not? From what I can tell it's perfectly legal to contract a clamping firm in your situation.

It might not be cost-effective and there would be some legal risk. But it would be for sure far more effective than leaflets.

Thanks NoRegretsCoyote. There is no downside for us in using the leaflet approach. It costs nothing, there are no negative consequences if it does not work, and the upsides of success are great.
I would not underestimate the effect of leaflets. People do not like the prospect of being taken to court, especially when the Gardaí are involved.
Also, we think that using a clamping firm is like breaking a nut with a sledge hammer. Why subject people to the brute force of having their car immobilised after a day at the beach when the more subtle approach of a leaflet is available?

 

[huskerdu]

The problem you are trying to solve is stopping them parking there in the first place.
A leaflet isnt going to make any difference to the parker at the end of the day at the beach, they already got away with it.
You need something that acts as a deterent when they are looking for parking.
A chain is the best very cheap idea. A fake clamp on a car and a very large sign might work.

 

[Right Winger]

Thanks RightWinger. It is true that the driver is not stealing in the way that Section 5(2) describes. After all, before and after they park there, the land is still the property of the management company.
What we are talking about is theft of a service that the management company provides for the exclusive use of the residents, a service for which they paid when buying their apartments, and for which they still pay through annual management fees and contributions to the sinking fund. Section 4(1) states that "a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it." While the defence can argue that the primary intent of the driver is to get a free parking space, the inevitable consequence is that the owner is deprived of that parking space. Given that there are signs prominently displayed advising that it is private property, the driver's mens rea is clear.
Section 4(5) defines the word appropriates to mean "usurps or adversely interferes with the proprietary rights of the owner of the property", and defines depriving as "temporarily or permanently depriving". The driver who uses one of these private parking spaces without implied or explicit consent might reasonably expect to pay a price for taking this chance.

You may well be right, but personally I think that (based on normal principles of statutory interpretation) Section 5, being an exclusionary section, overrides and limits the application of Section 4. In any event, as @NoRegretsCoyote pointed out, it's a somewhat esoteric argument. Can't imagine a Garda engaging with it, can you?

On the other hand, it might deter some into compliance and it is indeed cheap.

If it were down to me, I'd get a rota of volunteers to block the gates with their own vehicles at the end of the day. They could move to allow residents to move in/out but not the trespassers. Do that a few times and the fear of it will have a mighty dissuasive effect

 

[L_earner]

The problem you are trying to solve is stopping them parking there in the first place.
A leaflet isnt going to make any difference to the parker at the end of the day at the beach, they already got away with it.
You need something that asks as a deterent when they are looking for parking.
A chain is the best very cheap idea. A fake clamp on a car and a very large sign might work.

Thanks Huskerdu. I will post updates. Two factors make me optimistic about this. First, the power of the bush telegraph. Bad news spreads fast and we hope that fewer people will take the chance of parking in our space. Second, human nature. Related to the first point, rather than risk being taken to court, we calculate that enough people will opt for the voluntary contribution to our management company to spread the word that we are serious about deterring illegal parking.

 

[fistophobia]

Thanks Fistophobia. The residents objected to this on the grounds that they are inconvenienced by having to get out of their cars every time they pass through the entrance.

I still think this is your best option. The residents either want a solution or not.
I would add a small plastic sign onto the middle of the chain... PRIVATE
Anyone cheeky enough to enter and park ... then you add a lock to the chain.

I have a similar problem myself ... own a few car spaces off a busy main street.
I could write the book on this topic.

 

[L_earner]

You may well be right, but personally I think that (based on normal principles of statutory interpretation) Section 5, being an exclusionary section, overrides and limits the application of Section 4. In any event, as @NoRegretsCoyote pointed out, it's a somewhat esoteric argument. Can't imagine a Garda engaging with it, can you?

On the other hand, it might deter some into compliance and it is indeed cheap.

If it were down to me, I'd get a rota of volunteers to block the gates with their own vehicles at the end of the day. They could move to allow residents to move in/out but not the trespassers. Do that a few times and the fear of it will have a mighty dissuasive effect

Thanks again RightWinger. Section 5 is not relevant to parking illegally. It deals with trustee malpractice, transfer of defective title and other unrelated matters.

When making a statement to Gardaí, all the elements will be there neatly packaged, including a signed witness statement, photos of the warning signs and of the vehicle illegally parked, the context for making the statement, and copy of the notice issued to the driver. We are also meeting the local Superintendent to explain our actions, so that they will be ready for us. The Gardaí cannot ignore a complaint when it includes prima facie evidence of law breaking. They will at the very least make contact with the driver, who in most cases will not appreciate this. However, we calculate that very few drivers will risk allowing it to get this far, opting instead to make the voluntary contribution to our management company, resolving never to park there again, and bad-mouthing us to whoever will listen. That last part is the bit we are most hoping will happen. Once the word spreads, our work is done.

Regarding the rota of volunteers, that would indeed be fun if it were not so illegal.

 

[DannyBoyD]

Thanks DannyBoyD. Think of it this way. If you come back from the beach with partner and maybe children, you are probably tired, maybe a little stressed from your day, but you are looking forward to getting into your car and heading home. Which would you prefer, a leaflet or a clamp?

You want to stop people parking there in the first place; that's the point.

 

[DannyBoyD]

The Gardaí cannot ignore a complaint when it includes prima facie evidence of law breaking.

they can however decide it's not of sufficient importance to pursue or spend time on.

They will at the very least make contact with the driver, who in most cases will not appreciate this.

Probably won't give a toss to be honest.

However, we calculate that very few drivers will risk allowing it to get this far, opting instead to make the voluntary contribution to our management company,

Unlikely in my view; again the point is to dissuade, not prosecute after the fact.

, including a signed witness statement, photos of the warning signs and of the vehicle illegally parked, the context for making the statement, and copy of the notice issued to the driver.

don't understand why you are giving yourself so much work

try a few traffic cones and/ or a resident standing outside for a few hours on holiday weekends (do a rota, one hour each), no need to be blocking cars, just chat to anyone coming in and let them know it's residents parking only.