BCSC decision raises questions about indefinite agreements for the use of common property parking spaces

Parking stalls are generally assigned in one of two ways: either as common property (CP) or limited common property (LCP). In some commercial strata, parking stalls may also be strata lots. We are concerned here about CP parking spaces.

If parking stalls are CP, they will be assigned in one of two ways: a long-term lease to the developer with sub-leases to individual owners. If there is no long-term lease, then parking stall assignments are usually assigned by the strata ad hoc. Some strata will simply keep a list of parking stall assignments. Others will have a bylaw that allocates parking stalls between the strata lots.

Where parking spaces are on CP without a long-term lease, a question arises whether bylaws or agreements to give strata lots the exclusive right to use certain parking spaces is enforceable. Section 76 of the SPA says that the strata may grant an owner permission for the exclusive of CP, but only if the permission does not exceed 1 year in duration.

This issue came before the court in 0795520 B.C. Ltd. v. 0720073 B.C. Ltd., 2012 BCSC 1694. The court refused to exercise its discretion to enforce an exclusive use agreement over parking spaces between two commercial strata lots in a duplex. The owner seeking to enforce the agreement sought, among other things, in order to convert the CP parking spaces to LCP. There were a number of reasons that the court refused to grant the order which is unique to the circumstances of that case.

The decision does, however, call into question the widely-used practice of giving owners exclusive use of CP parking spaces. Owners with CP parking spaces tend to view those spaces as LCP even though they are not. Some owners regard the CP spaces as property they can trade, sell or buy from owners. This can cause no end of problems when the strata lots subject to such agreements are sold.

Stratas with CP parking areas should consider having the parking stall assignments registered as part of the bylaws. This would make any agreements to exchange parking stalls subject to a ¾ vote resolution to amend the parking bylaw. Although the procedure is cumbersome, it will provide some certainty and security for owners.

We welcome your questions: We are going to start posting a new series on our website called “Asked and Answered”. If you have a strata law question you would like answered please email me at pgm@lmlaw.ca. I will publish a version of your question and our answer to your question on our website.

What we do: We advise strata corporations and owners on all matters strata governance. We also chair controversial meetings. If you have a meeting coming up that requires an objective and firm hand in the chair, let us know. We can keep your meeting running smoothly so that the controversial business gets done as efficiently as possible. For more information about our strata law practice, contact Paul G. Mendes at 604-685-4894 or pgm@lmlaw.ca. Be sure to visit our website at WWW.LMLAW.CA to learn about our other practice areas.

Lesperance Mendes Lawyers
900 Howe St #550, Vancouver, BC V6Z 2M4
(604) 685-3567