When it comes to parking bays in a sectional title scheme it is important to keep in mind the type of ownership that one has in a sectional title scheme. Firstly, you will have full ownership of your section that you purchased. Secondly, you will have an undivided share in the common property of the scheme. Thirdly, but not in all schemes, you may have a right to an exclusive use area such as a parking bay or a garden area. This does not imply full ownership, but a mere right to use part of the common property with the exclusion of the other owners. It is important to remember that exclusive use areas are still part of the common property of the scheme and therefore any final decision pertaining to that specific part of the common property rests with the body corporate of the scheme.
The owner or occupier of a section must not (except in the case of an emergency) without the written consent of the trustee of the scheme 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 unit or a parking bay allocated for visitors’ parking, which consent must indicate for how long the consent was given.
The process to be followed with regards to who decides on parking bays and who uses it can mainly be divided in two phases:
Before registration – This is the phase where the developer is in the process of laying out the scheme and registering the scheme in the Deeds Office. When the sectional plan refers to the reservation of exclusive use areas on the common property the developer must, when he applies for the registration of the scheme in the Deeds Office, impose a condition by which the right is conferred upon the owner of the section and he will cede the right to the owner by the registration of a unilateral notarial deed. If no reservation was made by the developer and the body corporate has not been established the registrar may issue a certificate of real right to exclusive use.
After registration – This phase starts the moment any person other than the developer becomes owner of a unit in the scheme and the body corporate is established. The developer of the body corporate may make management or conduct rules which confer rights of exclusive use and enjoyment of parts of the common property upon members of the body corporate. These rules must include a layout plan on which it clearly indicates the locality of the exclusive use areas (eg. parking bays); the purposes for which such areas may be used and include a schedule indicating to which owner such an area is allocated to.
Like most decisions in a sectional title scheme a resolution should be passed by the body corporate to give effect to this process. Should a resolution be obtained the amended rules must be lodged together with the prescribed application form with the Sectional Title Ombud, who will check the rules and approve them.
The owner of the right to exclusive use will have the responsibility to maintain the parking bay allocated to him in a good state. Should the owner of the right refuse or fail to do so despite written notice to him, the body corporate may effect the necessary maintenance or repairs and claim the cost from that specific owner where the failure threatens the stability of the common property, safety of a building or materially prejudices the interest of the body corporate. In the case of an emergency no such notice needs to be given. The body corporate may also request the owner of the right, whether or not such right is registered or conferred by the rules, to make additional contributions to the fund for administrating that part of the common property.
Should you have further questions or concerns regarding the parking bay allocation in your scheme, we would advise that you consult with a property specialist that can help you clarify the parking allocations.
This article first appeared on the Phatshoane Henney Attorneys’ February 2017 newsletter