Figuring out fair access to parking

Sunday, August 29th, 2010

Tony Gioventu

Dear Condo Smarts: We bought into a 10-unit condo building in May. There are 10 parking spaces, and we assumed that each unit was granted the use of one parking space. Now we have found out that the top floor unit has three parking spaces. We have good street parking, but it is not underground, and not secure. The owner of the top-floor unit has lived there for 22 years, and has threatened to sue us if we take away any of her spaces. She claims that because she was the first purchaser, she negotiated the three parking spaces in her sale. She also claims that if she decides to sell, those spaces go with her unit. The remaining owners have met to discuss this problem and have decided not to create a costly dispute, but there must be some way of resolving and giving fair access to all owners.

— MJ, Nanaimo

Dear MJ: Exclusive allocations of parking, storage lockers, and deck and patio spaces can be found in strata corporations throughout the province. Many of them are legitimate and enforceable agreements, and many are often just “claimed” space by a dominant owner or the resident bully of the strata.

The first step council has to take is to review a copy of the registered strata plan, and any limited common property amendments that may have been made over the years.

If the property has been designated as limited common property by the owner developer, then it could only be changed by a unanimous vote of the strata corporation. If it was designated as limited common property by a vote of the strata corporation, then the strata could amend it by 3/4 vote.

Either way, if the area was properly registered as limited common property, that person has the right of exclusive use of the property. If the area is common property, the use may be regulated through the bylaws and rules of your strata, so you would then need to review all your bylaws and rules that are in force and effect. If there is an agreement for the use of the parking in the purchase agreement then a copy of the agreement should be provided to the strata council, so it can determine validity. At this time, it would be prudent for the council to seek a legal opinion on your options.

Ideally, it is in everyone’s best interest to avoid arbitration or the courts, but in the end, if there is no documentation, or willing cooperation of the parties, or a legal opinion to support the claim, the strata corporation or the owners have no choice but to commence an arbitration or proceed to the courts to obtain a decision.

If the person claiming to have the right of use of these spaces is on council, then it also has to be noted that with respects to an allegation of a bylaw violation, that person cannot be a party to the decision of strata council.

Tony Gioventu is the executive director of the Condominium Home Owners’ Association. E-mail [email protected]. bc. ca.

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