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Car parking rights an issue to be resolved
Source : The Hindu Property Plus Published On : 2009-03-21 City : Chennai

One of the most controversial matters relating to the rights of an owner of an apartment is the allotment and use of car park. In many apartments, there are more cars than the available parking space.

This often generates emotional as well as factual claims on the priority of rights to acquire or use the parking space, affecting every day life and management of the apartment complex.

An overview of this issue would help clarify some of the misconceptions and explore positive solutions.

An apartment owner can be stated to be a person owning the apartment and an undivided interest in the common areas and facilities or limited common areas and facilities.

A car park would be covered by the general concept of common areas and facilities, as vehicular parking areas are generally brought within the purview of common areas and facilities.

In order that a particular area is referable or is to be allotted or transferred as a car park, then the same should have been approved in the plans. A vehicular park or car park is not specifically defined in any of the enactments. Hence a general definition has to be adopted. It is to be taken as an area, which is specifically used as a parking lot. This can be an enclosed or open space wherein the intended use for this area is exclusively that of a car park.

Specific rules

The car park area has to be designed in such a manner that there is a provision for circulation of vehicles gaining access to and from the parking spaces themselves and from the premises into the street.

The marking of car park in the site set back space is a method adopted as a matter of common convenience in the sense that this is an area which can be used as a space for car parking, but not specifically for the purposes of exclusive car parking.

License given

It is a common practice for the builders and the developers to transfer allotted spaces either covered or uncovered (open), as parking lots or parking area. This is done by making a marking in the open areas and also in the closed area and this marking is related to the apartment concerned by means of a document. The common area cannot be transferred exclusively in favor of one or more persons. Instead, a license is granted in the form of rights to use a specified area exclusively. In the model provided for the contents of deed of apartment, as per the Tamil Nadu Apartments Ownership Act, there is a specific reference to parking areas in the section relating to amenities which require the area to be specified in terms of square feet and also as a percentage of interest of the apartment owner in each of the listed amenities including parking area. Though this has not come into force and it may also be difficult practically to split the undivided percentage as relatable to each of the amenities. However, this can be taken as an overall model to indicate that the owner has an interest in car parking and possibly the extent. In effect, the idea is that each apartment should have at least one car park, as having a car has become a necessity. Bigger apartments may have more numbers in accordance with the prevalent norms. In case of buildings, which have already been constructed without adequate parking space, it is best that the occupants evolve a method, which is in the interest of one and all, and take an attitude of adjustment and acceptance of certain levels of inconvenience and accommodate the interest of all persons to a maximum practicable extent. Rotational usage can be considered. Payments from certain persons can be considered. The possibility of making way to others by the caretakers can also be considered. A consensus has to be evolved taking into consideration facts and circumstances. In my view, it will be good if the occupants are open to alternate available options instead of taking a stand that irrespective of the hardship caused to others rights, notional or otherwise, have to be maintained.

The intention of community living and also the legal concept is that the car park is not to be transferred separately from the apartment. The apartment together with the percentage of undivided interest in common areas and facilities is to be treated as inheritable and transferable within the meaning of law like any other property and that the percentage of interest in common areas and facilities is intended to be that of a permanent character and is not to be separated from the apartment to which it appertains and even if not conveyed separately, is to be intended to be conveyed, transferred or encumbered along with the apartment concerned.

No leasing

It is also not desirable to have the practice of letting out or leasing the car parking area to third parties and strangers who are not occupants in the apartment complex concerned. Certain peculiarities and even notional hardship can arise in this regard. For example, a person who has one or more car parking area, may not actually use it, but may not be in a position to lease or rent it to a third party. These kinds of inconvenience, which border on curtailment of rights, have to be put up with rather than trying to be established as a matter of right. These are issues, which have to be taken as part of community living. Seclusion of parking areas by building barricades, blockades or other structures are also not the best methods of tackling these issues.

While it is not possible to arrive at a consensus for every issue, it is possible to take an attitude of positive expectation moving towards solution of problems and thus, take advantage of the human capacity and skills to address and solve problems rather than taking obdurate stance of exercising purported rights. This does not mean that there are no legal solutions to genuine problems. The legal option, in matters such as this, can be taken as a last resort, when other options are not possible or are thwarted by others on grounds, which threaten the very rights.

The author is partner, RANK Associates, Advocates, Chennai.

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