Parking, whether for a strata lot owner or for visitors, can be a huge and ultimately expensive issue for both owners and strata councils to deal with. It is therefore important for both sides to know their legal rights and obligations from the outset.
The nature of the strata corporation (apartment style or townhouse style) and how strata property is allocated (common property or limited common property) determines how parking spaces will be assigned.
In an apartment style corporation, parking is either on common property or limited common property.
A strata unit with a parking stall designated on common property has no ‘ownership’ rights over that parking stall. Consequently, pursuant to s.76 of the Strata Property Act a strata council may annually designate ‘use’ of a parking stall to a particular strata unit, the strata unit can lease a parking stall, or parking is on a first-come first-serve basis.
In a lease, the original owner-developer of the strata may grant a lease of individual parking spaces to a purchaser. But a potential purchaser should carefully examine what they are buying as some parking lease arrangements have been found invalid.
If the parking garage is on common property and an owner-developer leases the entire parking garage from the strata corporation and then enters into sub-leases of parking stalls with the first owners of the strata units, who in turn assign the same sub-lease right to subsequent purchasers of the strata unit, the lease arrangement may be deemed invalid because the strata corporation is not benefiting from the lease, the owner-developer is. Strata Plan 1261 v. 360204 B.C. Ltd. (1995), 50 R.P.R. (2d) 62 (B.C.S.C.). This contradicts the principle that as common property all owners have an equal right to its use and benefit.
Even if the strata corporation benefits from the lease, an original purchaser will want to ensure the lease is worded so that there is an automatic assignment of the parking lease to a new and subsequent purchaser.
If the strata units’ parking stalls are on common property and a strata unit is using two or more parking stalls, one must ensure they are leasing the additional stalls and that leased space has been designated on the strata plan. To grant the exclusive use of additional parking stalls to one strata unit over the interests of the other strata units would give one strata unit owner a benefit to the detriment of the other strata units owners. Hill v. Strata Plan NW2477 (1991), 57 B.C.L.R. (2d) 263.
Pursuant to s.74 of the Strata Property Act, in an apartment style strata unit, if parking is designated on limited common property then the original owner-developer will have dedicated a specific parking stall on the strata plan to a specific strata unit. The right to exclusive use of the parking space attaches to the strata unit. Only the right to ‘use’ a specific parking stall transfers to subsequent purchasers of the strata unit. No ownership rights exist.
In contrast, in a townhouse style strata unit, parking is usually in a garage and designated as part of the strata unit. Strata unit owner(s) ‘own’ the parking space and a strata unit owner will transfer ownership of the parking space with the sale of the strata unit.
Ensure you have reviewed the strata corporation’s bylaws and/or rules to determine parking allowances, visitor parking, and parking restrictions. When dealing with common property, the strata corporation, which gets its powers through the strata council, has the ultimate authority over the parking garage area, irrespective of past parking arrangements.
In summary, if you are purchasing an apartment style strata unit ensure you have reviewed the strata development’s strata plan to determine whether:
- a parking stall is on common property, in which case the parking stall is either designated annually, leased, or on a first come first serve basis;
- a parking stall is limited common property and designated as a separate strata unit with its’ own strata number (such as areas intended for commercial use);
- a parking stall is limited common property thereby allowing a strata unit to have exclusive use of a parking space but not ownership of it.
If you are purchasing a townhouse style strata unit, ensure the parking space is part of a strata unit and designated to your strata unit and number. This way ‘ownership’ of the parking stall can be transferred to subsequent purchasers of your strata unit.