The first lesson of economics is scarcity, there is never enough of anything to fully satisfy all those who want it, which is why one of the most valuable additions to any property is secure, and preferably covered, off street parking.
Unfortunately, many sectional title schemes lack the necessary space required to fully satisfy all those who need parking and as with any scarce resource, nasty fights and wild claims of ownership are bound to follow.
In these situations trustees often grapple with the best way to deal with the allocation of parking or they have to contend with owners challenging the legalities of existing parking arrangements.
I often hear about “informal” parking arrangements, which have been put in place by trustees who did not realise that they have no right to allocate permanent parking space, either formally or informally.
Trustees need to understand that there are only five ways in which parking bays can legally be allocated to owners and occupiers in a sectional title scheme. We broadly categorise these arrangements into three categories, namely exclusive use areas, lease agreements and temporary trustee consent.
Exclusive use area parking bays are the most common, but most misunderstood, type of arrangement. Two types of exclusive use rights exist, namely:
1. Firstly, exclusive use rights can be created in terms of section 27 of the Sectional Titles Act either by a developer on the opening of the register of a sectional title scheme, or a body corporate by creating new registered exclusive use areas on the authority of a unanimous resolution of its members. These types of exclusive use areas are shown on the scheme’s sectional plan and are registered in the Deeds Registry in the name of the person entitled to their use.
2. Section 10(7) & (8) of the Sectional Titles Schemes Management Act provide for a second type of exclusive use rights. A developer or the body corporate can make management or conduct rules that confer rights of exclusive use on members of the body corporate. These exclusive use areas are shown on a scale layout plan included in the scheme’s rules. The rule must include a schedule showing to which owner each area is allocated and when a section is sold the exclusive use rights conferred upon that section are automatically transferred as part of the process. If exclusive use rights are conferred by the management rules, they can only be created and amended by a unanimous resolution of the body corporate. If they are conferred by the conduct rules, they can be amended by a special resolution of the body corporate.
Another manner in which a parking bay can be allocated is by way of a lease agreement entered into between the body corporate and an owner or occupier in terms of section 4(h) or section 5(1)(a) of the Sectional Titles Schemes Management Act. Two types of lease agreements exist, namely:
3. Section 4(h) of the Sectional Titles Schemes Management Act states that the body corporate may, upon special resolution, enter into a lease agreement with any owner or occupier of a section to let a portion of the common property. A lease entered into in terms of section 4(h) may only be offered to an owner or occupier of a section and may not be entered into a period of more than 10 years or be renewable indefinitely or renewable for periods, which amount in all to more than 10 years.
4. Section 5(1)(a) of the STSM Act states that the body corporate may, upon unanimous resolution, on direction by the owners and with the written consent of any holder of a right of extension let the common property or any part thereof under a lease for a period longer than 10 years. In this case the lessee need not be an owner or occupier, and the lease must be notarially executed and registered at the deeds registry.
The last way in which parking bays can be allocated to an owner or occupier is by the trustees granting that person temporary consent to use the parking.
5. According to prescribed conduct rule 3(1) an owner or occupier may upon the written consent of the trustees use a common property parking bay provided that this consent may only be for a specific period. This type of parking arrangement is therefore temporary and should only be used in the case of emergencies.
It is clear that any permanent parking arrangement on common property requires member approval and the trustees are not entitled to make these arrangements. This is because common property is jointly owned by all of the owners and therefore no person has an automatic right to exclusively own or use these areas.
Should your community scheme require any advice on how to correctly allocate parking or should you require assistance identifying potential illegal parking arrangements in your scheme please don’t hesitate to contact our consulting department at email@example.com for a no-obligation quote to provide the necessary legal assistance.
Article reference: Paddocks Press: Volume 14, Issue 09.
Specialist Community Scheme Attorney (LLB, LLM), Auren Freitas dos Santos, has previously been a Portfolio Manager and a Legal & Compliance Officer of a large managing agency.
This article is published under the Creative Commons Attribution license.