Parking
February 20, 2022 | BY Bellbuoy
You know, somebody actually complimented me on my driving today. They left a little note on the windscreen, it said 'Parking Fine.' Tommy Cooper
Insufficient parking usually leads to discontent in community schemes, as it results in occupiers or visitors parking on common property areas not reserved for this or utilising other occupier’s allocated parking. Sometimes these parking debacles result in access to and from the scheme being impeded. In cases of emergency this can have dire results. In this blog we will look at the types of parking available in sectional title schemes and who is responsible for costs relevant to the different parking classifications. Further, we will look at how a parking policy should be implemented and what can be done where a breach of policy is discovered.
Parking can be classified as either:
| i. | Unreserved common property parking (visitors parking): Section 37(1)(n) requires the trustees to comply with the laws that apply to common property and as such the trustees should check the relevant by-laws, as in terms of town planning requirements visitors parking must be provided for; usually one bay per four residential units. While in practice occupiers may utilise these bays, trustees should not grant permission to owners to use visitors parking on a regular basis to park additional vehicles, as then there would be insufficient parking for visitors to the scheme. |
| ii. | Reserved common property parking: Should the scheme have insufficient parking to service occupiers and there are unallocated parking bays on the common property, trustees should pass a resolution in a meeting regarding a parking policy that clearly delineates rights and obligations. These should be publicised on a notice board and communicated to all occupiers. It is important that the rules confirming how the allocations are made are clearly defined to avoid accusations of prejudice. In terms of section 39 owners are entitled to direct trustees with regard to a parking policy in a general meeting. It is often recommended that lease agreements be entered into to clarify and secure arrangements for both parties. |
| iii. | Exclusive use parking: Either personal right exclusive use is created through the rules or real right exclusive use through the surveyor general plans and owner’s title deeds. For more information on exclusive use please refer our newsletter edition 3 uploaded on our website here. |
| iv. | Private property parking: Usually applying to garages where the area is sectionalised, either as its own section or a non-contiguous section having the same section number as the residential unit. |
Whatever arrangements are in place for a particular scheme the rules should always be applied reasonably and fairly to all owners and occupiers of sections. It is generally regarded as reasonable that owners with larger units be allocated or own more bays and in some instances owners enter into special arrangements where they purchase the right to additional parking.
With regard to maintenance of the parking areas, the sectional titles act states that common property must be maintained by the body corporate, exclusive use costs must be collected from the owners allocated the usage rights (unless the rules make the owners directly responsible for arranging maintenance) and private property is the responsibility of the owner. Any special arrangements with regard to improvements to common property obtained by consent of all owners, but not allocated as exclusive use, should be formalised in writing.
The prescribed conduct rules state that owners may not park on common property areas without the written consent of the trustees. Current legislation entitles trustees to tow or remove vehicles where this rule is contravened. It is recommended that clear and precise rules apply to this process and that the trustees ensure that the towing or removal is outsourced to a reputable company where storage costs, as well as the consideration that the vehicle may not be collected, are taken into account. The prescribed conduct rules dealing with vehicles specifically state that owners, occupiers or visitors shall not drip oil or in any way deface the common property and where relevant the body corporate will have recourse against the relevant owner.
Prescribed management rule 70 allows the body corporate to give an owner thirty days notice to maintain their section or common property area allocated for their exclusive use. Should the area not be maintained in the requisite time period the body corporate will be entitled to have the area maintained and debit the cost to the owner’s levy account. This rule is the only part of sectional title legislation that allows the body corporate to act without a court order. However, some schemes have penalty clauses inserted as additional rules where breaches are incurred. Where there is any dispute over the interpretation of the rules or a breach of the rules occurs that cannot be resolved, this must be referred to arbitration or to the ombud under the new legislation still to be enacted.
The best policy is a clearly defined fair one that is communicated to all owners to ensure it is preventative rather than reactive when it comes to parking concerns.
S Moore-Barnes
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