By Lauren Squier, Associate and Phathutshedzo Ratshitanga, CandidateAttorney
The allocation of parking is one of the most contentious and sensitive topics in sectional title schemes and trustees often have to ensure that they apply only lawful methods in allocating parking in order to avoid members challenging the legality of same. This article explains how parking bays can be lawfully created and/or allocated.
- Exclusive use areas are defined by the Sectional Titles Act (“the Act”) as parts or a part of the common property for the exclusive use by the owners or owner of one or more sections.
- Common Property is defined by the Act as land included in the scheme, parts of the building(s) not forming part of a section, and land referred to in section 26; namely land added to the common property by further purchases or acquisitions.
- A section is defined by the Act as a section shown as such on a sectional title plan.
Parking bays, unless forming part of a member’s section, will be classified as common property and out of this common property exclusive use areas can be created, either by the developer or by the body corporate, to be utilised as parking bays.
If a parking bay forms part of a member’s section, they are the owner in law. However, if a parking bay is part of the common property and the owner is given the exclusive use of it, the parking bay is owned by the body corporate, but the right to use only is transferred to the owner.
In terms of section 27 of the Act, if a part or parts of common property are delineated on a sectional title plan for a specific purpose, the developer must when making application for the establishment of the sectional title register, impose a condition that such parts of the common property be used as exclusive use areas by a specific member/s. The developer then shall cede the real exclusive use rights to such members/s by the registration of a notarial deed of cession in their favour.
Should the unit be subsequently alienated to another member/s, this real right is similarly ceded to the new holder by way of registration of a notarial deed in their favour.
The Body Corporate
The body corporate can employ various methods to establish exclusive use areas in order to create parking, they are as follows:
Section 27 of the Act
Section 27 of the Act allows a body corporate by way of unanimous resolution of its members, to request that an architect or land surveyor applies to the surveyor general for demarcation of the common property of a sectional title plan to be utilised as an exclusive use area by one or more members of the scheme.
The owner of a section who is also the holder of a real right to exclusive use over a section of the common property may transfer his / her interest in the right by the registration of a notarial deed of cession.
The body corporate or a developer can make rules (either of conduct or management) which award rights of exclusive use of parts of the common property to members of the scheme. The rights created in this manner are not real rights and cannot be transferred as real rights, and they are also not registered in the Deeds office.
Section 4(h) of the Sectional Title Schemes Management Act (“STSMA”) allows a body corporate to enter into a lease agreement with an owner or tenant of a section for the lease of areas of the common property. It is required that the body corporate agrees to the letting of these areas by way of special resolution.
In addition, section 5(1) of the STSMA allows the body corporate, by way of unanimous resolution and the written consent of the holder of a right of extension under section 25 of the Act, to let or alienate areas of the common property subject to section 17(1) of the Act.
Parking bays (that are part of the common property) can thus be let by the body corporate to an owner or tenant of a section in this manner.
Issues surrounding parking allocations in sectional title schemes are not as simple as they may seem. The setting aside of common property and the allocation of same as parking must be done in compliance with the prevailing laws. Such compliance may be achieved through one of the methods stated above.
The above is only a very brief summary of a very complex area of the law. Should you have any disputes with your body corporate, or with your managing agent, in relation to the allocation or creating of parking bays, we suggest that you approach a lawyer with the requite expertise in sectional titles law, as this area of law is very easily misunderstood, and could result in you not obtaining the results you wish.