Introduction
When I first started practicing as a community scheme attorney I realised that there were three topics that came up as common “problems” in sectional title living. I categorised these issues as the “3 ‘P’s’ of sectional title living”, namely pets, parking and people. These “P problems” are the cause of most of the issues and disputes in sectional title schemes. In this article I will deal with parking issues.
What does the legislation say
Prescribed conduct rule 3(1) contained in the Regulations of the Sectional Titles Schemes Management Act 8 of 2011 briefly deals with parking, by providing that an owner or occupier in a scheme must not park or allow their vehicles to stand on any part of the common property, other than a parking bay specifically allocated to their section, and in the case of visitors, a parking bay allocated for visitors’ parking.
Prescribed Conduct Rule 3(1) states that the trustees can consent to such use of the common property, but only for a limited duration. Prescribed Conduct Rule 3(2) states that a consent under sub-rule (1) must state the period for which it is given.
In the case of an emergency, no prior trustee consent is needed. What constitutes an emergency needs to be judged on an ad hoc basis, but it is doubtful that parking in visitors parking because it is closer to your flat or because you will only be home for a little while before heading out again, would be considered an emergency.
Amending prescribed conduct rules
Previously the trustees had the power (in terms of the old prescribed conduct rules), to remove or have a vehicle towed away that was parked, standing or abandoned on the common property. Many schemes must now specifically regulate the use of visitors parking bays by amending their conduct rules and having them approved by the Community Schemes Ombud Service.
These rules can include the regulation of unauthorised parking by allowing for wheel clamping or the towing away of vehicles; access control procedures when entering and exiting schemes; the use of garages in such a way as to prevent it from being used only for storage; and the duration of parking, such as the prevention of parking by overnight visitors.
Although the prescribed conduct rules have never provided for clamping of vehicles, the scheme’s amended rules may provide for this action to be taken by the trustees, managing agent, security or scheme employee. When drafting a rule providing for clamping of vehicles, provision may be made for the payment of a release fee or penalty by the owner of the vehicle to the body corporate before the clamp will be removed from the vehicle. When clamping the vehicle, it is suggested that a notice be placed on the car, providing the contact details of the party in charge of releasing the clamp.
The amended rule should not provide that the trustees may themselves remove or tow the vehicle away, rather that they may arrange for the removal or towing away of the vehicle. By arranging a specialised contractor, the trustees reduce the risk of possible damage to the vehicle, and liability for such damage. The conduct rule should be drafted in such a way that the owner of the vehicle will be liable for the expense of removing or towing away the vehicle. As with any fining or penalty provision in the scheme’s rules, the rule (and the amount of the fine or penalty imposed) must be reasonable and be enforced through proper procedure.
Scarce commodity
Most sectional title schemes do not have sufficient available parking within their scheme for all their residents, and allow visitors parking to be used on a permanent basis by owners and occupiers. Where a scheme finds itself in this situation, it is important to first find out whether the applicable zoning scheme requires visitors parking, and the number of required bays. If there is such a requirement, the scheme will need to utilise an available area of common property to create additional parking bays.
The creation of additional parking bays would need to be dealt with as an improvement to common property, requiring the members of the scheme to take a resolution. Once created, the parking bays would need to be allocated to the owners or occupiers.
There are various manners in which parking bays can be allocated. Parking bays can be allocated as an exclusive use area; or as part of the section; or as a separate section; or a lease could be entered into between the body corporate and the owner or occupier of a section. Each of these options require authorisation by member resolution, and in some instances, amendment to the scheme’s rules, or sectional plans, and the adjustment of the contributions payable by members. The body corporate, as part of the required member resolution, may agree with the applicant owner or occupier for an amount of compensation, which should be reasonably calculated.
Conclusion
Parking can cause various problems in a sectional title scheme, which may have far-reaching implications for owners and occupiers. Each scheme should take stock of the available parking bays, and how they are legally allocated. After this has been done the body corporate should establish whether their rules appropriately deal with the use (or misuse) of these parking bays. If not, the body corporate should consider having their rules amended to provide properly for any sand all issues that could arise.
WRITTEN BY DR CARRYN DURHAM
