Sect. title parking 101

Considering the densification of South African cities, and the increasing percentage of people with cars, it is no wonder that owners and occupiers of sections in sectional title schemes often struggle with a lack of parking space.

Owners often buy a unit in the scheme "with" a parking bay. However, this does not automatically mean that the buyer owns the parking bay. A parking bay can only be owned exclusively by an owner if it is marked as a section on the scheme's sectional plan, which is fairly uncommon. More usually, parking bays are common property (owned by all owners of sections in undivided shares) but are either subject to lease agreements in favour of particular owners or to exclusive use rights conferred on particular owners.

A parking bay can be subject to either one of two types of exclusive use rights:

Firstly, and more formally, the parking bay can be depicted as an exclusive use area on the scheme's sectional plan and the exclusive use right is then ceded to a particular owner by a notarial deed of cession.

Secondly, and more informally, the parking bay can be made subject to exclusive use rights in favour of the owner of a particular section from time to time in terms of the rules of the scheme (either a management rule by unanimous resolution or a conduct rule by special resolution).

If the parking bays in a scheme are unregulated common property, as is not unusual, then in theory all owners have the right to use them all, although certain owners may claim that they have rights to a particular bay or bays because they have "always used them". The owners will normally wish to formalise the use agreements regarding the legally unregulated bays. They can do this by agreeing to make the parking bays subject to exclusive use rights and then allocating or auctioning off the rights to exclusive use of the bays to the highest bidders. This is also a way for the scheme to inject income into its reserve fund and may save a scheme from having to raise a special levy for unforeseen maintenance and repairs.

If a scheme needs more parking bays, what can it do?

If the scheme is situated next door to an empty plot, the body corporate could buy the land next door and create exclusive use bays or lease out bays on the newly acquired land. However, this would be an expensive option and there are not many schemes that happen to have an affordable empty plot next door to them.

The trustees could propose a non-luxurious improvement to the common property by converting a common property garden area into a tarred or paved parking area. However, this too could be pricey and, if any owner requests a special general meeting after being informed of this proposal by the trustees, a special resolution of the body corporate would have to be passed before the trustees would be authorised to effect the improvement with body corporate funds.

Jennifer Paddock is a sectional title expert. Learn more about the benchmark course in sectional title scheme management, presented by Paddocks in conjunction with the University of Cape Town.

Article by: Jennifer Paddock - www.paddocks.co.za