Titled Parking and Restrictions on Owners

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Dear Betty:

A quick question regarding parking and our condominium bylaws. I am part of a condo board for a building in the Calgary downtown core. We have within our bylaws, under the Exclusive Use of Property section, the following section:

Article 8 - Exclusive Use Common Property section

8.5 Parking Stalls "Notwithstanding anything to the contrary hereinbefore contained the Board shall be at liberty to either allocate or approve and generally regulate the usage of any vehicular parking stalls which are common property, and generally regulate the use of the vehicular parking facilities in the Project to enable safe and orderly use of such parking facilities. Only Occupants may use parking stalls and storage lockers. Further, guests shall only use parking stalls and storage lockers in accordance with policies as established by the Corporation."

We currently have a number of unit owners who are of the opinion that it is within their right as owners of their titled parking stalls, that they allow non-residents to use their parking stalls, and remain within compliance of the bylaw. As each unit owner requires the use of a security pass to enter our building as well as the underground parkade, we the Board are concerned with:

a) non-compliance with the bylaw
b) security concerns due to strangers having access to our building and whatever floors the security passes allow them to access.
c) from a legal perspective, how much control does the owner of each titled parking stall to do what they want with the stall? For example, leasing or lending it out to non-residents.

As a Board, we are attempting to provide a consistent approach to this issue and are planning on taking the approach that the owner is:

a) in contravention of the bylaw
b) poses a security concern for the rest of the building

We are unsure of the legal side of things. Can you provide us with some thoughts on this for use in a discussion at our next board meeting?


D & T

Answer/Response

We are not lawyers so we can not give you a legal opinion or legal advice. The comments made here are from experience only and are in no way to be interpreted as legal opinion. Please seek the opinion of a condominium lawyer in this regard.

First we are assuming the parking areas are owned by way of a separate title, and are not exclusive use areas that are leased or assigned to the owners.

The bylaw section that you inserted in your question is with reference to common property that is exclusive use to specific owners.

Technically, titled parking stalls are "Unit" property and are not part of the common property. It is therefore reasonable for owners to interpret this as a section of the bylaws as it does not apply to their titled parking units.

Typically bylaws have wording that is specific to the rules regarding the titled parking spaces, and in many cases restrictions such as those you desire are also found as a restrictive covenant, registered on the title to the parking stall unit.

It has been our experience that in a situation where there are separate titles for the parking units and there is no restrictions in the bylaws or registered on the title itself, that the owners of these titles have the same rights as those that come with the residential units. In other words, the Condominium Property Act states that an owner can not be restricted from leasing out a unit in a condominium. This would include a parking unit or storage unit.

At best bylaws or a restrictive covenant can restrict these rights to lease the unit to someone who lives in the condominium property. Without this restriction being evident in the bylaws or restrictive covenant the Act would prevail.

If there is no restriction registered on the titles to these parking units then, it would be a suggestion to amend the bylaws to restrict the leasing of these parking stalls to owners in the condominium itself.

Regarding the application of the bylaw you quoted, we recommend that you seek a legal opinion to determine if the bylaw you quoted would govern the titled parking areas as well.

Thank you for submitting your question to Betty's Condo Owners Club.