Sean Radue
A reader’s concern about her neighbour potentially blocking a panhandle driveway in an emergency situation has driven her to contact the YourProperty expert.
The reader explains that she lives in a complex where her unit is positioned at the end of the panhandle-type driveway, which one of her neighbours feels entitled to use as if it belongs to his unit.
His children and dogs play in this space and he often blocks the driveway with his vehicles or invites guests to park there.
This situation is potentially life threatening as the reader is highly allergic to bee stings and, in the case of a sting, must use an epinephrine auto-injector to prevent anaphylactic shock and then head immediately to the hospital.
She questions whether her neighbour is entitled to use this communal area in this manner.
See the reader’s question here.
Sean Radue of Radue Attorneys in Port Elizabeth says the first step would be to establish whether the driveway, which is vital in allowing vehicle access to and from the reader’s residence, forms an exclusive use area.
“An exclusive use area is an area that would have usually formed part of the common property but has been excluded from it.”
Radue says an example would be parking areas “attached” to one or more owners’ respective sections, which would be designated for their use only.
“Such areas are recorded and indicated on the sectional plan, together with their permitted use.”
As it would appear that the driveway in question is the only entrance and exit available to the reader, it could prove fruitful to establish whether this area was ever recorded as an exclusive use area attached to her section, he says.
“If this isn’t this case, the area concerned would typically be classified as common property.”
Radue explains that common property comprises the areas in a complex not forming part of a section, which is a unit belonging to a resident or owner.
“This includes areas such as the roads in a complex, public grassed areas, communal pools and the like.”
Naturally, a resident has rights over the unit in which he or she resides, which is greater than any right over the use of the communal property, he adds.
According to Radue, the Sectional Titles Act provides some assistance in determining the strength or extent of the right in respect of communal property.
“An owner ‘must use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment thereof by other owners or other persons lawfully on the premises’.”
The neighbour’s actions complained of by the reader almost certainly violate the provisions of the Act, he says.
“Preventing access to her section severely restricts the use and enjoyment thereof by the reader.”
Radue says one of the rules applicable to such an area is that “an owner shall not park or leave any vehicle standing on the common property or permit or allow it to be parked or left standing on the common property without the written consent of the trustees”.
In the particular circumstances, it is highly unlikely that the trustees would have consented to such use, he says.
“Even children playing in such an area could be regarded as being unreasonable use of the common property.”
Radue suggests that the reader take this matter up with the body corporate or the managing agent, should one have been appointed.
