What is a parking space? The legal theory and practice are still looking for the answer to this question, but the law is silent about it. The lack of a legal definition and a normative regulation for the parking space regime creates obstacles in the development of their construction and transfer of their ownership.
With the 2004 construction boom, parking places became popular. More and more investment projects envisage their differentiation and purpose. The government has to react to these changes and that is why it creates enactments which assign competent authorities to not approve project in which a minimum number of parking spaces is not planned. Although the government regulates some particularities regarding the building of parking lots, it still has not determined the main question – what is a parking space.
Since there are no law regulations regarding these questions, the notaries and the registrars create their own practice which is often contradictory and initiates legal disputes. If the court decides that the parking space is not an object and is excluded from the civil turnover, it can be inferred that the transfer deal would have a defect (lack of subject matter) – ground that the contract be declared void. Such cases are not rare and many lawyers defend this thesis.
This is why it is of upmost importance that the parking space is defined as an object on a legal level as well as determining whether it is a movable or real property as this would influence the transferring procedures.
The problem is that the Property Law from 1951, which is still valid as of now, is inadequate to the modern condition of the construction. Art. 110 from the Property Law gives the following definition to real estate: “Real estate is: the land, the plants, the buildings and the other constructions and everything that is attached naturally or by human activity permanently to the land or the construction.” Furthermore the law says that all other objects, including energy, are movable.
By analyzing the mentioned provision, we can come to the conclusion that the parking space does not coincide with neither of the hypothesis from art. 110 – it is not a construction, nor is it attached to the land. On the contrary, it is often that the parking space is just white outlines on the ground. However, we cannot assume that the parking space is a movable object.
Since we cannot clarify the status of the parking space as a real or movable object (or clarify if it is even an object), we cannot answer the question how to transfer ownership over parking space – with a notarial act, with a contract or some other way?
What is the practice? For long years notaries have been trying to create a lasting practice which would be adequate to the problem. Although some lawyers believe that the parking space is not an object and that contracts with them are void, notaries conduct such deals and do not consider them void. The parking space itself is described in the notarial acts as a share of a common parking lot with a specified right of use.
This is an exceptionally unstable description. If we assume that the parking space is a share, how is it possible to determine right of use over it? This could happen only with the approval of all the co-owners – something which practically does not happen. Although unstable, this is the only possible description of parking space because in order for it to be transferred, it must be identified in some way.
The Cadastre and Land Register Act poses a problem when it comes to transferring parking spaces. According to this act a scheme issued from the Agency of Geodesy, Cartography and Cadaster for every property located at the region with a valid cadastral map is required. The scheme itself, however, is issued as a substantive object in a building. Since parking spaces are not defined as real estate nor movable objects, they cannot be treated as substantive objects according to The Cadaster and Land Register Act and cannot receive an identifier. All of this creates additional complications in their transfer.
The Notary Chamber has repeatedly expressed opinions that the legislation needs to be changed. According to the newest bill brought in the Notary Chamber, parking places will be legally defined, will be treated as substantive objects and as real estate. All transactions that have been concluded so far, regardless of their description in the notarial acts, will be considered to be legitimate.
Solving the parking space problem is crucial for overcoming the contradictions between the court and notarial practices. The Ownership Act and the Spatial Development Act should be amended and supplemented in manner that will lead to a free transfer of parking spaces. This will help the development of the civil turnover and construction.
Author: Radostina Hadzhieva, Attorney-at-law