[Africa] We’re seeing a growing trend in Cape Town where people want to live, I suppose, closer to Cape Town, but they’re still relying on vehicles and cars and therefore parking becomes a premium. A lot of properties do not automatically come with a parking bay. In fact, many developments will have you either buying or renting a unit separately to the parking bay that you’ll then also probably have a separate agreement with the owner of the property regarding its letting or renting.

Auren Freitas Dos Santos is a legal advisor at Paddocks, joins me on the line now. Auren, a very good morning and welcome to the show.

[Auren] Hi, good morning Africa, how are you doing?

[Africa] I’m good, thank you very much. How are you this morning?

[Auren] I’m very well, thank you.

[Africa] I am right in saying that, right? That we’re seeing a growing trend in Cape Town, where if I am renting unit number seven, for example, in this establishment, that that does not almost always automatically come with an allocation of parking bays that I’ll need to enter into, often a very different agreement as far as parking bays are concerned.

[Auren] That’s exactly right. So, especially with community schemes in the city center, there is a trend that the requirement for parking bays in those buildings are quite low compared to say, buildings in the external metropoles, just given the fact that there are public transport opportunities available to the owner. So, the city of Cape Town requires less amount of parking bays to be made available. So, it is quite a scarce resource in those buildings and that’s why most times when you do purchase a unit in a sectional title complex, you’re not guaranteed to have a parking bay allocated to that unit.

[Africa] In fact, where I stay in town, it was made expressly clear that it does not come with a parking bay and that I would need to go to a building across the road, which is a parking building, if you like, to rent a parking bay there. So, I knew going into that agreement that I was not going to be getting a parking bay at all. Where it is easier, I suppose, Auren, is if you and me stay in the same unit, I have, let’s say, an additional car, you’ve got a parking bay you don’t use, I come to you and say, can I rent that parking bay from you? Because in that situation, we both live in the same unit, rather, in the same complex and therefore have access to the various parking slots, right?

[Auren] Yes –

[Africa] The more difficult one is where, and maybe let me ask, would you be allowed to rent out that parking spot to somebody outside of that community scheme?

[Auren] Yeah, so we’ve seen a growing trend, especially with the sharing economy sort of platform that we’re seeing, that people are seeing parking bays as a commodity that they can trade externally from outside their scheme and offer it to the general public in return for quite a nice rental. But the problem with that is that those parking bays are specifically demarcated for the purposes of the owners in that scheme. And an owner isn’t entitled to offer that bay to somebody from the general public. There’s quite few instances in which an owner can do that. So the only time that an owner can actually allow a third party to use that bay, if he owns that bay privately. So if it’s registered as a section and it’s registered in his name, then he’s free to deal with it, within reason, as he wishes. But most times, the bays in community schemes are what we call common property. And therefore, they’re owned in equal and undivided shares by the owners. And it’s specifically for the purpose of the owners in the scheme. So, we often see that if somebody, for instance, has an exclusive use parking bay in a building, they offer it to third parties in exchange for rent, but unfortunately, they’re not entitled to do that. So that’s something we have quite a serious concern about.

[Africa] So, the law is clear. If the parking areas are common property, you are expressly not allowed to bring in an outside party to come and rent that parking spot.

[Auren] That’s correct. So that parking spot that you’ve been allocated either as an exclusive use area or in terms of a lease that you’ve entered into with your body corporate, that is specifically for purposes of your building’s use. So in order for you to offer it to an external third party, there’s quite a serious approval process that has to be passed. So it’s not for the owner himself to decide that he wants to offer it. It should actually be offered by the body corporate to the public. And that lease agreement, if any, needs to be entered into between the body corporate and the third party. And that lease agreement would have to tick a few boxes in terms of the Act before it can legally be leased out.

[Africa] Fair enough. Thank you very much for the clarity. Auren Freitas Dos Santos, attorney at Paddocks, talking to us about the growing trend of having parking bays leased out or rented out to third parties. If the parking areas in the complex are common property, you are breaking the law in leasing them out to people outside of that scheme.