How parking can be created in a sectional title development?
Category Property News
Parking inside a sectional title development is often very problematic and the Community Scheme Ombud Service (CSOS) receives quite a few complaints dealing with parking, or the lack thereof, in a sectional title development!
One thing must be clear from the onset, a developer DOES NOT NEED to create sufficient parking space within such a development when he or she develops it - the developer is only required to create the number of parking bays as per zoning requirements.
Yes, you read correctly, there may be more units than actual parking spaces, and this is completely legal!
It begs the question: what can be done to create more parking in such a development?
We must differentiate between two instances, i.e., before, and after a Body Corporate has been established.
Firstly, Section 27 of the Sectional Titles Act, No. 95 of 1986, states that a developer can, when opening a sectional title register in the Deeds Office, impose conditions whereby certain parts of the common property (exclusive use areas) can be conferred to certain units.
What this means is that the developer can decide that unit number 1 is allocated parking bay number 1, and then register a real right, which is ceded to the owner by way of a unilateral notarial deed of cession in the Deeds Office.
The owner of unit 1, from time to time, will therefore pay to have this parking space or garage transferred into his or her name, and when the unit is sold, the parking bay is ceded to the next unit owner by way of a bilateral notarial deed of cession. It is interesting to note that a parking bay or garage created in this way can also be sold between unit-owners and is taken into consideration by a bondholder for valuation purposes!
Section 10 (7) & (8) of the Sectional Titles Schemes Management Act No. 8 of 2022 (STSMA) caters for the second scenario where the developer did not impose such a condition when opening the sectional title register, it can be catered for in either the management or the conduct rules. This is after the Body Corporate has been established.
When parking bays are created and same is in the rules of a scheme, then a plan to scale must be included with the rules that demarcate which exclusive use area attaches to which unit number and is going to be used for parking. This exclusive use area is not a real right and cannot be ceded to anyone else, like a parking bay created by a notarial deed of cession.
Additionally, the rule must include a schedule showing to which owner each area is allocated, and when a section is sold, the exclusive use rights conferred upon that section is automatically transferred as part of the process.
If exclusive use rights are conferred by the management rules, they can only be created and amended by a unanimous resolution of the body corporate. If they are conferred by the conduct rules, they can be created and amended by a special resolution of the body corporate.
It is worth a mention that exclusive use areas are always part of the common property.
The body corporate may, by special resolution, enter into a lease arrangement with any owner or occupier of a section to let a portion of the common property, according to Section 4(h) of the STSMA. Only the owner or occupier of a section may enter into a lease under section 4(h), and such a lease may not be for a term exceeding 10 years, be renewed indefinitely, or be renewable for periods totalling more than 10 years.
Section 5(1)(a) of the STSMA states that the body corporate may, upon unanimous resolution, on direction by the owners and with the written consent of any holder of a right of extension let the common property or any part thereof under a lease for a period longer than 10 years. In this case, the lessee need not be an owner or occupier, and the lease must be notarially executed and registered at the Deeds Office. According to Prescribed Conduct Rule 3(1), an owner or occupier may upon the written consent of the trustees, use a common property parking bay provided that this consent may only be for a specific period. This type of parking arrangement is therefore temporary and should only be used in case of emergencies.
Say for instance a parking bay or garage has now been allocated to a specific owner, however, the owner merely refuses to upkeep this garage or parking bay, what recourse does the Body Corporate have against such a member?
Prescribed Management Rule 31(2) states that If a member refuses or neglects to do any of the following despite written demand by the body corporate: (a) carry out work on that member's section ordered by a competent authority as required by section 13(1)(b) of the Act; or (b) repair or maintain a section owned by that member in a good condition the building's stability or safety, or otherwise materially jeopardizes the interests of the body corporate, its members, or the occupiers of sections generally, the body corporate must remedy the member's failure and recover the reasonable cost of doing so from that member; provided, however, that in the event of an emergency, no demand needs to be made.
It is therefore clear that if you do not maintain your exclusive use area, the Body Corporate will do it for you and charge you for the upkeep!
We trust that you have found this article useful and from the above, you will see that parking can indeed be created in a sectional title development!
Thank you.
J Wasserman
Community Scheme Ombud Service (CSOS)
Author: Helen Melon Properties