Pretoria - The battle over a parking bay at an upmarket multi-million flat complex in Cape Town’s sought-after Bantry Bay has ended up in court.
In this matter, two flat owners were at odds over parking bay number 19.
The owners of unit 7 at the sectional title scheme, Florentia, turned to the Western Cape High Court insisting the parking bay was theirs. The owner of unit 11, however, insisted it was hers.
Guido Schrange and Mave Samoon, the owners of unit 7 – the applicants – said when they purchased the unit for nearly R13 million, they made it clear there would be no deal without parking. The estate agent made it clear that parking bay 19 belonged to unit no 7.
Meanwhile, the owner of 11, Xandra Bolliger, who also owns unit 17, said in terms of the parking plan and table, parking bay 19 belonged to unit 11.
When Florentia was built, the body corporate made rules in 1983, including parking bays. The two units now in court, at the time had different owners. At the time parking bay 19 belonged to unit 11, and unit 7 had no parking bay.
In April 2016, unit 7 was sold to the applicants and in October 2016 unit 11 was sold to Bolliger for R9m.
The applicants told the court that unit 7’s previous owners occupied parking bay 19 for decades. This was despite the original parking bay plan indicating unit 7 did not have a parking bay.
It also emerged that unit 7’s previous owners paid levies over the years for this parking spot. The previous owner of unit 11, to which the parking spot was allocated years ago in the plan, never paid any levies towards it.
Unit 7 was for a while leased to a tenant, who was also levied for the contested parking bay. When the applicants bought unit 7, they said they were assured the parking bay was theirs.
At the time of buying the unit, the applicants were also shown a copy of the levies payable for the bay. On taking transfer of unit 7, the applicants used the bay when they were in South Africa and were charged levies for it.
But in April 2019, Bolliger asserted the right to use parking 19, based on rule 73 of the sectional title scheme and the plan allocating the bays.
The court considered how the parking bay was used over the years. It said if Bolliger had believed she was buying a flat with exclusive use of parking 19, she would have asserted that right when she took occupation of her unit in 2017.
The court also noted that the deed of sale between the seller and Bolliger did not expressly include the right to an exclusive-use parking bay.
Judge O L Rogers ruled Bolliger didn’t hold the right to exclusive use of the parking bay; the applicants did. Bolliger was given a week to remove any vehicle from parking bay 19, so they can use it.
Pretoria News