# Apartment parking space not in lease



## rmelly (10 Dec 2007)

I'm purchasing a second hand apartment, on the basis of a designated parking space. I was previously told it was included in the lease, but found out this morning that it isn't actually referred to, but that the solicitor will get a 'declaration of use' (?), from the previous occupants family (was there from day 1, but since deceased).

What if anything are the problems around this? My solictor is happy to proceed on the basis of the declaration of use...Should I be?


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## rmelly (10 Dec 2007)

Bit more info: 

i. The apartment has been unoccupied for approx a year, so this may impact the effectiveness of the declaration of use?

ii. The spaces are unmarked

iii. Concerned that something didn't add up, I have driven past a couple of times over last few days, and noticed that the space was being used by someone else both times (same person).

iv. I spoke to someone on the management committee, the space is 'allocated' to the apartment in question.


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## Stifster (10 Dec 2007)

I'm not sure exactly what use a "declaration of use" is. Are you going to be able to wave it in the face of this third party?

Perhaps one of the conveyancing solicitors here might have come across them.


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## mercman (10 Dec 2007)

I have seen something like this before where the declaration of use became null and void when the developers of the property and owners of quite a few of the properties voted to take back the spaces for their own use and there was damn all any of the other owners could do. Bottom line in my opinion is that you either own it or not -- forget the fancy legal terminology.You should ensure that as long as you own the property, you own the space - nce and simple.


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## rmelly (11 Dec 2007)

thanks for the replies. I spoke to a barrister friend last night, he wasn't particularly impressed with the 'declaration of use' and as you guys have pointed out, it has little legal standing - apparently it is along the lines of a right of way, but gives no legal entitlement to the space and is in no way enforceable... he's going to try to get a 3rd opinion from a colleague who specialises in conveyancing.

I proceeded on the basis of the advertisement(s) and brochure saying there was a 'designated car space' - I have to say I feel cheated - basically my (non legal) interpretation is that the vendor is trying to sell me something they don't own.


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## rmelly (11 Dec 2007)

Is it normal for the lease to make refeence to the parking space?


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## Martinslan (11 Dec 2007)

Yes it is normal for the deeds to make specific reference to the parking space. It is usual to have it identified by number. and like viewing the apartment you go view your parking space. Treat it as if you were going to buy it on it own merits and as an asset you could sell on its own merits.


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## csirl (11 Dec 2007)

> Yes it is normal for the deeds to make specific reference to the parking space. It is usual to have it identified by number. and like viewing the apartment you go view your parking space. Treat it as if you were going to buy it on it own merits and as an asset you could sell on its own merits.


 
Agree with the above. A lot of leases also have a plan of the car park included with the particular space outlined in red.


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## MOB (11 Dec 2007)

This question cannot be answered without a more detailed look at the title.  However, it is wholly possible that things are fine.  If I were buying, my investigation would go along the following lines:

1.  Are the common areas vested in the Management company?
2.  Is the Management Company owned outright by the apartment owners - i.e. developer no longer running show?
3.  Is every apartment in the same boat - i.e. there is one space per apartment and it is designated, but not formally recorded on the deeds?

If the answer to all of these was yes, I would not be too concerned.  As a member of the company, your rights would be the same as those of every other member.  It would not be open to the company to victimise you by taking away your space and leaving others.  This would entitle you to a remedy in company law quite independently of your rights as set out in the title deeds.

Note that this would not be the exact equivalent of having  a lease or licence over the parking space.  For instance, it would in theory be open the the management company to sell off the parking spaces (but not so as to advantage one set of members at the expense of another - they would have to sell all, and there would of course have to be a vote). But what are the actual chances of this? Fairly slim I would say.

Basically, your questions should be aimed at ensuring that all owners have the same rights, and that there are no avenues through which you could lose out relative to the other owners.   Think of it as being like a golf club - you may not own your locker, but each member is entitled to have one.

If you got this, I think you could probably go ahead without being too worried.


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## mercman (11 Dec 2007)

What MOB says might in theory be correct, but you,like many others are purchasing a property at a high price as it has parking.Without parking in any market,the apartment is worth less,and no matter what state the market is in remains less favourable than one with parking. My instance whence I was involved, was where the MC (the developer in another guise), simply took back the parking --- end of story.The only apartments left with parking were the developers and his mates.Therefore,and I hold no grudge against any other Posters,   I suggest hold you ground or else the parking remains of little use to you.


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## FKH (12 Dec 2007)

I would personally be very wary of this "declaration of use". Your solicitor may simply see it as a simple solution to finalising matters. If the spaces are unmarked and you have nothing indicating ownership of a space then it would be very difficult to argue to any other parties that it is solely yours. The parking sounds like it is communal. You could ask your solicitor to check the original contarct/building agreement as it might be mentioned in that.


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## rmelly (12 Dec 2007)

situation has cleared up (somewhat). the lease does refer to the parking but the parking space number is not referred to. the declaration of use is to say the space has been used by the original purchaser since apartment was first sold.


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## FKH (12 Dec 2007)

Does the Lease refer to a general right to use one parking space in the development or was it the intention that the spaces would be numbered and a specific space would be assigned?

I don't see how a declaration of use would be any good if there is only a general right to use one space. Unless a specific space is referred to in some of the title documentation then I don't think you can claim an exclusive right to park in one space.


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## rmelly (12 Dec 2007)

uses the wording 'exclusive use'


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## mercman (12 Dec 2007)

But who actually owns the Car Parking area-- this is important as if not properly in the right hands all the residents could lose its use


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## FKH (13 Dec 2007)

If the Lease does not refer to the specific space that you intend to park then I would hold that you don't have excludve use of it.

You mentioned the Management Company said that the space in question was allocated to the apartment. I would get that in writing from them as should a dispute arise it would probably hold more weight that a declaration of exclusive use.

To me it sounds like the parking in the dveleopment is communal and the vendors tried to claim an assiganed space and have been caught out by you and are now trying to come up with something else.

If it was me I would want something in writing from the management company, builders, builders' solicitors etc. stating that I owned the space. I wouldn't accept the previous owner saying it with no independnet documentation to back it up.


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## mercman (13 Dec 2007)

Not much point in getting anything in writing from the Management Company. In the case it turns out wrong, who would be sued - yourself as the MC should be owned by the property owners. If the Car park is not vested in individual property owners names or at the very least, the MC, I would walk away gracefully. Remember if still in the developers name he could choose to sell it or use it to build upon in the future.


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## Martinslan (13 Dec 2007)

Fully agree with mercman.  it is so simple, it is either in the lease clear and specified or it is not. Remember the day you buy is the day you sell and if this was presented in such a vague way to me as a possible buyer I would walk. However it is your choice.  A question about the apartment itself. Is it clear what number and block and drawings are referenced to in the lease /deed. I bet it is,  why use any less a yard stick for a €50,000 car park space. Follow the money


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## FKH (13 Dec 2007)

Mercman, while I share your scepticism of management companies the management company does / will eventually own the common areas in the development. If they stated in writing that the OP had exclusive use of the space then technically no-body else could dispute it.

I appreciaate what you say about if the developer still owns the land and fully agree with you about what they could do in the future.

It sounds to me like the deal is almost finished and the OP can't pull out and this has arisen at the eleventh hour so it's really about what evidence he can get to protect his position.


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## rmelly (15 Dec 2007)

My solicitor has requested (a number of times) info as to why the management company hasn't been handed over after over 20 years.

The vendors solicitor has been unco-operative in dealings in relation to the management company - details not supplied, requests ignored etc.

As things stand now, I am not expecting to proceed. Signed contract and remainder of 10% haven't been returned to vendors solicitor.


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## mercman (15 Dec 2007)

FKH, I think after 20 years the developer has alternative plans with the Car Park area. Maybe in the future the  MC might own the common areas. However, at thsi time it doesn't. Note the lack of cooperation of the solicitors acting for the MC. I wonder who is the MC at present and if an entity on to themselves who put them there in the first instance. The owners have little scope of individualising matters as long as the original developer holds onto his piece and to take legal action would be costly and very time consuming.


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## rmelly (15 Dec 2007)

The parking is literally right behind the block, with a row of garages along the length (apartments have either garage or space), that backs on to neighbours rear gardens. The width including the row of garages is less than 10 meters, so I don't imagine much could be done with it.

Also the garage roofs are currently being renovated.


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## mercman (15 Dec 2007)

Only he could build a number of townhouses where the garages are ?? Property moves in cycles and decent developers know this. Have you spoken to other owners in the block ???


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