Know Your Rights - Who owns parking bays in high-rises?

ONE of the attractive features of high-rise development is the availability of car park bays for use by the owners, occupiers, invitees and the public. Although all the parking bays may appear to be the same as they are built according to local government approvals and requirements, the legal position of such parking bays may differ between one and the other.

This article attempts to survey the different legal positions of parking bays in Peninsular Malaysia.

ACCESSORY PARCELS

The Strata Titles Act 1985 defines "accessory parcel" as any parcel shown in a strata plan as an accessory parcel which is used or intended to be used in conjunction with a parcel; while "parcel", in relation to a subdivided building, means one of the individual units therein, which (except in the case of an accessory parcel) is held under a separate strata title.

Thus, when someone buys a parcel together with an accessory parcel which is indicated in the sale and purchase agreement, he has ownership of the parcel together with the accessory parcel which will be indicated in the strata title of the parcel.

However, no accessory parcel or any share or interests therein shall be dealt with independently of the parcel to which such accessory parcel has been made an appurtenant as shown on the approved strata plan, as provided in Section 69 of the Strata Titles Act.

Therefore, when one sells the parcel to another, it will be sold together with the accessory parcel; similarly, one cannot sell the accessory parcel as the legal rights to the accessory parcel itself cannot be assigned or transferred to the other.

COMMON PROPERTY

The Strata Titles Act defines "common property" as so much of the lot as is not comprised in any parcel (including any accessory parcel), or any provisional block as shown in an approved strata plan. Common property is directly under the control of the joint management body (JMB) or the management committee (MC).

The JMB or MC has the right to determine the usage of the common property and to maintain it.

Thus, the JMB or MC has the right to allocate the area on the common property as car park bays and to rent it out subject to any terms and condition with or without payment.

However, the car park bays allocated from common property cannot be sold or transferred as the JMB or MC merely acts as a guardian for the common property.

RETAINED BY DEVELOPER

In the event that the developer possessed accessory parcels in conjunction with the parcels it owned, it may opt to grant a licence to any party who is interested in the accessory parcel (licensee) with monetary consideration by entering into a licence agreement.

However, the use of the accessory parcels is subject to the terms and conditions of the licence agreement and the licensee does not "own" or have legal ownership over the accessory parcel.

SOLD AS A PARCEL

Unless it has been demarcated properly in the plan of the building for subdivision, the developer may sell the car park bays as individual parcels (as defined earlier).

The car park bays stand as individual units in a subdivided building, and are held under separate strata titles. These are instances whereby a purchaser acquires a parcel by entering into a sale and purchase agreement and then enters into another separate supplemental agreement to buy another parcel as a car park bay.
In this event, the purchaser may opt to sell his car park bay separately without selling his residential/commercial unit.

The writer, formerly a banker, is now a lawyer. Comments: letters@thesundaily.com