The allocation, use and maintenance of parking bays in sectional title schemes can be a constant source of conflict. Understanding the law governing their use could resolve a lot of this conflict.
Many sectional title schemes have a recurring problem in common, and that is the debate of who decides on the parts of the scheme that will be allocated to parking, who is allowed to use these bays and who is responsible for their maintenance, says Michael Bauer, general manager of property management company IHFM.
The type of ownership of the parking bays is important, as this determines what is done with the bay in question. Many bays are common property or are exclusive use areas (either rule created or as registered as a real right) allocated to a specific unit. In addition to problems of who is responsible for the maintenance or upkeep, there are often parking shortages within schemes, and this needs to be dealt this fairly and equitably, said Bauer.
There are two phases whereby allocation of bays is decided: either before registration of the body corporate or after.
The first instance is when the developer is in the process of registering the scheme with the Deeds Office and laying out the sectional plan. If exclusive use areas on the common property are referred to then the developer imposes a condition whereby the right to exclusive use is conferred to the owner of a particular section and this is done via a unilateral notarial deed.
After registration of the scheme, the process is very different and much more difficult. The developer may have made management or conduct rules pertaining to exclusive use rights and enjoyment of parts of the common property. These rules should include a sketch plan which clearly demarcates where the exclusive use areas are (i.e. parking bays), what these areas are used for and a schedule of owners the areas are allocated to. If, for any reason the rules are amended or rights changed, there must be a corresponding resolution from the owners to this effect and the amended rules with an application form must be now submitted to the Community Schemes Ombud Service, who will check the rules first and, hopefully, approve them.
The owner with a right to exclusive use of a parking bay is responsible for the upkeep of this area and liable to pay an exclusive use levy – and if he refuses to do so the body corporate may, after writing to him first to remind him of his duty to keep up the good state and appearance of the area, effect any maintenance necessary at the owner’s cost.
It also has to be remembered that the body corporate has a right to ask the owner using the exclusive use area for additional contributions to the body corporate fund, said Bauer.
