Parking Stalls and Storage Lockers

It is important to remember that, the use of parking stalls or storage lockers by the seller does not necessarily mean that they will be available for the purchaser. Unless it is clear that the parking stall/storage locker will be available to be used by the purchaser, the parking stall /storage locker should not be included on the listing.

The Form B is required to indicate the designation of parking stalls and storage lockers and must indicate whether they are part of a strata lot, a separate strata lot, limited common property or common property. If the designation is common property, the Form B must also identify how the use is administered. The Form B must indicate whether the Strata Council has given approval for the use, whether the parking stall or storage locker is rented on a monthly basis and if so, the amount of the rent or alternatively, whether the parking stall or storage locker has been allocated by an assignment from the owner developer.

Following is an explanation of the various designations that may be identified on a Form B, and the significance to the seller and buyer.

Strata Lot or Part of a Strata Lot

Some strata plans designate parking stalls/storage lockers as part of a strata lot or, in some very rare cases, as a separate strata lot. Although such designations are rare, the Form B will indicate the designation. If the parking stall/storage locker is part of a strata lot, the new purchaser will automatically own and therefore have the use of the area when the strata lot is purchased. The listing for the strata lot can identify the parking stall/storage locker by reference to its stall or locker number. It is not necessary to list the parking stall/storage locker separately. No further action is required by the buyer to ensure that the buyer will have the use of the parking stall/storage locker.

In some cases, parking spaces may be designated as a separate strata lot. If the seller is selling both the residential/commercial strata lot and the parking strata lot, both must be listed for sale and separately transferred to the buyer.

Limited Common Property (LCP)

If a parking stall/storage locker is designated as LCP, whether by the developer, or by the owners at a later time, the parking stall/storage locker is automatically available for use by the owner of the strata lot to which the parking stall/storage locker is designated.

When listing a strata lot to which the exclusive use of a LCP parking stall/storage locker is designated the listing should indicate that the parking stall/storage locker is LCP. The numbers of the parking stall(s)/storage locker(s) can be shown on the listing as being the parking space(s)/storage locker(s) number that the buyer will be entitled to use. No further action is required by the buyer to ensure that the buyer will have the use of the parking stall/storage locker.

Common Property

If the parking stall/storage locker is designated on the strata plan as common property, it is within the control of the Strata Council, except in cases where there is a developer’s lease, which is discussed below. Common property is owned by all owners as tenants in common. The Strata Council has the authority under the Strata Property Act to permit an owner or a tenant to use common property. If the parking stalls/storage lockers are common property, owners or tenants are entitled to use a particular area as a result of the Strata Council’s grant of exclusive use to that owner or tenant. The Form B will indicate whether the parking stall/storage locker is available for use as a consequence of an allocation of use by the Strata Council. In some cases, the permission to use the parking stall/storage locker may have been given many years ago. Some owners may not even realize that they are using their parking stall/storage locker as a result of the permission granted by the Strata Council. It may even be that the permission to use the parking stall/storage locker was originally given by the developer during the time the developer was acting as the strata council. The provision of the Strata Property Act that authorizes the Strata Council to grant permission to an owner or tenant to use common property limits the period of time for which permission can be given to one year. The permission may be subject to conditions. The permission may be renewed and may be made subject to the same or different conditions. Additionally, the permission for the exclusive use of common property may be cancelled on reasonable notice.

Because the allocation of the use of common property is within the control of the Strata Council and can change, when listing a strata lot where the parking stall/storage locker is common property, the seller should not promise a buyer that the buyer will be entitled to use any of the common property. Rather, the seller should refer the buyer to the information on the Form B. The buyer can rely on the Form B to indicate which parking stall/storage locker is allocated to the strata lot being purchased, however the buyer’s agent should clearly point out the statement on the Form B that indicates that where the designation of the parking stall/storage locker is common property, the allocation is subject to section 76 of the Strata Property Act and may be subject to change in the future. If the Form B is incomplete, or the information conflicts with the information provided by the vendor, the real estate licensee should recommend that their client seek legal advice.

Developer’s Leases

In a number of developments the developer has entered into a lease of the common property parking stalls/storage lockers to itself or to a company related to the developer. After leasing the common property, the developer then enters into agreements with purchasers in which the developer subleases and assigns one or more parking stalls/storage lockers to a purchaser. The developer may charge for all subleases, or it may charge for only additional parking stalls/storage lockers.

Although the lease and sublease agreements vary, generally, the sublease provides that the owner must assign the sublease to a new purchaser at the time the strata lot is sold.

Leases of common property parking and storage areas are seldom registered on title, however, the Form B is required to indicate whether such a lease is likely in place.

Although the seller may not recall whether there was a sublease agreement, the information about the sublease may be contained on the contract of purchase and sale that was prepared when the seller bought the strata lot. If the information about the lease and sublease is not available, the seller should rely on the Form B as the indication that a lease/sublease arrangement is likely to exist. However, without specific information about the sublease, and particularly which parking stall/storage locker was leased, the seller is unable to provide the purchaser with any definitive information regarding the purchaser’s ability to use the parking stall/storage locker other than the information contained on the Form B. If the seller requires more information on the parking stall/storage locker that was assigned as part of the sublease, the seller may need to obtain legal advice. If the seller has a copy of the sublease of a parking stall/storage locker from the developer, the listing real estate licensee can include reference to the parking stall/storage locker when listing the strata lot for sale. The listing should indicate that the area in question is common property and that the seller has a sublease to a specific parking stall/storage locker. The number of the parking stall/storage locker can be shown on the listing. Without a copy of the sublease, the listing should only indicate the information contained on the Form B. A reference to a specific parking stall/storage locker should not be included on the listing agreement.

If the seller has a copy of the sublease, the buyer’s agent should obtain a copy and advise the buyer to read the sublease, or obtain legal advice, to ensure that the sublease can be assigned to the buyer. If the seller does not have a copy of the sublease, the buyer’s agent should recommend that the buyer obtain legal advice to ensure that the buyer will be entitled to the use of the parking stall(s)/storage locker(s) that are used by the seller.

Claims the Parking Stall/Storage Locker was Purchased

In a number of cases, sellers of strata lots insist that the listing should include the parking stall/storage locker because the seller believes they bought the parking stall/storage locker from the developer. The payment may have occurred in conjunction with a sublease of the parking area, or it may have been required by the developer in order to permit the allocation of common property. Notwithstanding any claims by sellers that they paid for a parking stall/storage locker and thus own the parking stall/storage locker, the designations as set out on the Form B are the designations that must be considered when determining how to represent parking stalls/storage lockers on the listing and when considering what a purchaser will be entitled to use after the strata lot is purchased. list