- Exclusive use parking bays only exist if they have been lawfully created and registered.
- Common property belongs jointly to all owners and cannot be claimed by individual residents.
- Unauthorised signs, markings or territorial claims do not create legal rights over a parking bay.
Sectional title scheme law in South Africa advocates for harmonious community living. With acts and regulations that define owners’ rights and confer powers upon the body corporate, the roles and responsibilities appear to be clearly defined – until a dispute arises.
One of the most contentious issues in schemes throughout the country remains parking, particularly allocated bays.
Exclusive Use Areas
The easiest way for a body corporate to avoid a complex-wide turf war is to have parking bays allocated to specific owners in terms of the scheme’s registered rules: these kinds of bays are known as Exclusive Use Areas.
An Exclusive Use Area is a part of the common property of a sectional title scheme that is reserved for the exclusive use of a specific owner. In sectional titles, an owner is a person who owns a section within the scheme, whereas the common property is the land of the scheme that is owned jointly by all section owners (who form the body corporate).
Exclusive Use Areas can be created under the Sectional Titles Act 1986, which are endorsed in the relevant owner’s title deed for their section in a scheme. Exclusive Use Areas can also be created under Section 10 of the Sectional Titles Schemes Management Act 2011, which are rule-based allocations. Both methods entitle a section owner to hold the exclusive use right over an allocated area in the scheme (to the exclusion of the other owners).
In the case of parking bays, a body corporate can create and allocate exclusive use parking bays to specific owners, provided the criteria of Section 10(8) of the Sectional Titles Schemes Management Act 2011 are met (in addition to an appropriate resolution from the body corporate being passed and the rules being registered with the Deeds Office or the Community Schemes Ombud Service).
The unlawful claiming of bays on a scheme’s common property
When a body corporate lawfully allocates an owner an Exclusive Use Area parking bay, there is no question that the bay belongs to its designated owner. However, if there are no exclusive use parking bays in a scheme, it becomes difficult for an owner to lay claim to any particular part of the scheme’s common property.
As the common property is shared in ownership by all members of the body corporate, no individual can suddenly assume ownership of a part of it unless an exclusive use right is passed by an appropriate resolution with a corresponding registered rule.
Oftentimes in schemes, some owners will become territorial and lay claim to parts of the common property that are nearest to their section, or otherwise aver that they have possession of a part of the common property on the basis that it has always been that way in the past.
Unfounded (and unlawful) means of acquiring exclusivity over a piece of common property can even extend as far as attempting to install signs or mark the ground of the scheme, neither of which is a legally acceptable means of being conferred an Exclusive Use Area.
Owners who take it upon themselves to usurp common property can very well find themselves on the receiving end of a mandatory interdict from a High Court or an adjudication order from the Community Schemes Ombud Service to refrain from such conduct.
In essence, if the parking bay is not a registered exclusive use right, then it is not for the exclusive use of a particular owner. As such, section owners who believe they have an exclusive use parking bay must verify whether there is a registered right (in the Deeds Office or with the Community Schemes Ombud Service) entitling them to have that type of Exclusive Use Area.
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