By the Paddocks Club team

Below are examples of two questions on the Paddocks Club discussion forum, to show you what is available to our Community members!

Can permanent residents use the scheme’s visitor’s parking?

Member’s question:

Good day Paddocks,

An owner rents out her 2 bedroom with 1 garage. 1 vehicle is parked in the garage and the other in front of the garage. These are the 2 parking spaces allocated to the unit.

It recently came to the management’s attention that the unit is now occupied by the tenant and two adult family members, one of whom has a vehicle that is parked in the visitor’s parking lot.

The CONDUCT RULES (Prescribed in terms of section 10(2)(b) of the Sectional Titles Schemes Management Act, 2011 (Act No. 8 of 2011) state the following:
3.1 The owner or occupier of a section must not, except in a case of emergency, without the written consent of the Trustees, park a vehicle, allow a vehicle to stand or permit a visitor to park or stand a vehicle on any part of the common property other than a parking bay allocated to that section or a parking bay allocated for visitors’ parking.
3.2 A consent under sub-rule (1) must state the period for which it is given.

The owner asked for permission they could park the 3rd vehicle on the visitors parking until the lease expires, however, management decided against it due to a previous incident where another tenant with multiple vehicles rented a unit.

The owner sent a lawyer’s letter to Management with the following:

In terms of rule 3 of the rules of conduct under the heading Vehicles, any occupier of a unit is entitled to park his/her vehicle on a visitor parking lot and you are hereby notified that the said occupier intends to park her vehicle on one of to park the two mentioned visitor parking lots.

Can a permanent resident park their vehicle on visitor parking or leave it there because there is no space at the allocated parking for the specific unit where she now lives?

Jennifer’s answer:

Dear member,

No. The resident is not entitled to park in a visitors parking bay in these circumstances. In fact, PCR 3(1) specifically prohibits this – except in the case of genuine emergencies – without the written consent of the trustees.

Here is an article setting out the different ways in which the BC can legally allocate common property parking bays to owners – in case there is space to create an additional bay or bays and the BC is keen to proceed with the project.

However, if the resident continues to illegally park in the visitors parking bay/s, the BC or any person materially affected can bring an application to the CSOS for relief.


Informally creating extra parking bays via PMR 29 (2)

Member’s question:

Hi Paddocks,

The trustees in a complex that we manage have been trying to make space for each unit to have a parking bay as parking has become a major issue. They have therefore proposed informally “creating” 2 or 3 extra bays on the common property where parking bays were not demarcated on the original sectional plan and have done this in terms of PMR 29 (2).

An owner has now contested this outside of the 30-day period on the basis that this has not been properly approved by a land surveyor and has concerns that there would not be sufficient room for emergency vehicles, like a fire truck to maneuver in and out of the parking area.

Please could you advise how you would tackle this issue?

Graham’s answer:

Dear member,

This question raises a whole lot of issues.

The trustees first step should be to make sure that the objecting owner is not correct that putting EU bays in the position they propose will impede access for emergency vehicles. They should approach the council for confirmation on this point.

If emergency vehicle access is not a problem, then we return to how to make these common property areas subject to EU rights and give those rights to the two or three areas they think need them.

If the common property areas the trustees have in mind need ‘improvement’ or ‘alteration’ that will cost the BC money, then the trustees  would have to use PMR 29 to get authority to spend BC money on the project. However, if the areas in question are already tarmac surfaced and all that has to be done is for other owners to agree to give up their rights to use those areas, with white lines to demarcate them, I don’t think that PMR 29(1) or (2) could apply.

Then we get to the nub of the issue, the creation and allocation of the EU rights. Here are some general comments:

  • EU rights can be created in terms of rules or by registration. The different process involved are set out in the Survival Manual available under the BOOKS tab above, but in short registration is much slower and more expensive than making a rule and having it approved.
  • The other owners are not obliged to give up their use rights to these proposed additional bays—it will require a special resolution at least to create and allocate the rights in terms of rules and a unanimous resolution to have them registered.
  • It is not unusual for owners to require that whoever gets the EU rights should pay the BC a fair market value for them.
  • The owners identified by the trustees have no preferential right to acquire EU parking rights.  It is not unusual for new bays to be auctioned to the highest bidding owners.
  • If sufficient other owners are keen to have more bays in the scheme, happy to let the owners the trustees have identified have the rights and satisfied with the financial arrangements (payment is not always required, but it is usual for the owners getting the rights to pay all the associated legal and draftsperson/surveyor costs) then the trustee can go ahead.

I suggest that the trustees should start by talking to all owners and then making a proposal that covers the points above in a way they think sensible. They should also get the BC lawyer on board to handle the drafting of the rule.

Kind regards

Member’s additional question:

Hi Graham,

Thank you for your comprehensive feedback.

In this case the trustees merely want to convert common area (that is already tarred) into body corporate parking bays, by painting lines on the tar. These will not be EUA bays. Does this change your response at all?

Graham’s answer:

Absolutely – remove the EU aspect and it gets much simpler.

The trustees still need to check the emergency access issue—that is a fiduciary responsibility, but in addition to that on this scenario they don’t need to get special or unanimous resolutions from owners.

My recommendation is that they tell owners, in detail and with a plan, what they propose doing and specifically state that they are not proposing EU rights, just making more open parking bays available to all owners, which will also not be reserved for visitors.

If they get many owners objecting to the proposal, I suggest that they should put it on the agenda of the next AGM / SGM and ask owners to give them a direction to do this.

Kind regards

Article reference: Paddocks Press: Volume 17, Issue 12.

Graham Paddock is available to answer questions on the Paddocks Club discussion forum for Community members. Get all your questions answered by joining Paddocks Club.

This article is published under the Creative Commons Attribution license.

Back to Paddocks Press – December 2022 Edition.