By Zerlinda van der Merwe
We often categorise the issues we experience in sectional title schemes as the “three ‘P’s’ of sectional title living”, namely pets, parking and people, which are more often than not, the cause of all the problems in sectional title schemes. Although this list has been added to over time, the abovementioned three issues remain the favourites. In this article, we will focus on parking.
Prescribed Conduct Rule (“PCR”) 3(1) of Annexure 2 to the regulations under the Sectional Titles Schemes Management Act 8 of 2011 (“STSMA”), provides that the owner or occupier of a section must not, except in a case of emergency, without the written consent of the trustees, park a vehicle, allow a vehicle to stand, or permit a visitor to park or stand a vehicle, on any part of the common property other than a parking bay allocated to that section or a parking bay allocated for visitors’ parking.
PCR 3(2) further provides that the consent granted under subrule (1) must state the period for which the consent is given.
When comparing this conduct rule to its predecessor under the Sectional Titles Act 95 of 1986 (“the STA”), one can see that the rule now provides that vehicles can be parked on common property in the case of emergencies, without the prior written consent of the trustees.
Demarcated visitors parking bays are included in this PCR, and many schemes specifically regulate the use of visitors parking bays in their additional, amended or substituted registered conduct rules.
It is interesting to note that the trustees no longer have the power, in terms of the PCR’s, to cause to be removed or towed away any vehicle parked, standing or abandoned on the common property without the trustees’ consent, unless the scheme amends their conduct rules to grant the trustees this power, which could be extended further to include clamping of these vehicles.
The amended rule should not provide that the trustees may themselves remove or tow away the vehicle, 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. However, situations have occurred when the trustees, managing agents or scheme employees have been unsuccessful in their attempts to arrange such a contractor to come out to the scheme to remove or tow away a vehicle. In such a case, clamping of the vehicle may be a better option.
Although the PCR has 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 other scheme employee.
Bearing in mind that the owner of the vehicle will be liable for the expense of removing or towing away the vehicle, when drafting a rule providing for clamping of vehicles, provision may be made for a release fee or penalty to be paid by the owner of the vehicle before the clamp will be removed from the vehicle. Issues may arise when the owner of the vehicle wishes to remove the vehicle at a time when there is no one available to release the clamp, such as late at night. 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.
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.
