Many association leaders know all too well that conflicts over parking spaces can elicit strong emotional responses, resulting in keyed paint, flattened tires, spray-painted graffiti on the board president’s car, angry phone and email messages and sometimes even physical altercations.
How can such a small piece of property cause so much angst and anger? It all begins with the assignment of one or more parking spaces per unit by the original developer. The use of parking spaces often is included with the units. Remaining, unassigned spaces are common elements and controlled by the association board.
Questions about HOA parking regulations are abundant. Answers don’t come as easily. But here are answers to some common questions to help your association avoid a few of the more troublesome potholes.
Can a unit owner sell his or her parking space? A person who has legal title to property can sell that property, but an assigned parking space in an association is a limited common element. It is part of the common elements reserved for the exclusive use of a particular unit. Even if the owner paid the developer for a prime or covered parking space, he or she purchased a right to use the space, not an ownership interest. Under the law, each association member has an undivided ownership interest in the common elements.
By logic and law, you can’t sell what you don’t own. Nevertheless, some enterprising owners try to rent their spaces while they are away for the summer; others try to sell a prime parking space to another unit owner; still others have tried to transfer their unit’s assigned space for cash right before bailing on a foreclosed unit. Ultimately, an owner cannot sell a parking space, and any attempt to do so voids the transfer.
Can associations sell unassigned spaces? The same logic would apply to the association. The spaces are common elements, and the association has no ownership interest in them. Therefore, absent express language in the declaration or master lease authorizing the association to charge a fee for the right to a parking space, the right to use a parking space cannot be sold.
What about exchanging parking spaces? Before a board sanctions or tries to enforce a rule against a parking space exchange, it needs answers to some basic questions:
- Do the governing documents contain a procedure for exchanges?
- Is the association obligated to keep a record of who has which space?
- Does the board have to approve the exchange?
- Is there any law affecting or limiting the exchange of parking spaces?
- Do the documents or the law allow money to change hands?
- Does the association have the right to charge a fee for processing the exchange?
Depending on the authority given to the board, regulations in the documents and limitations in the law, parking space sales and exchanges can result in liability for an unwary board or association.
Can the board force an owner to park in the unit’s assigned space? In most associations, one or more spaces are assigned to each unit. Boards should use their rule-making authority to adopt parking policies that require owners to park in their assigned spaces. That gives the association the authority to enforce the rules if an owner violates this provision.
Can the board force owners to change their assigned spaces? Some governing documents allow a board to switch owners’ parking spaces for various reasons. However, if the spaces are legally attached to a particular unit, it would be illegal for a board to sever the space from the unit or to revoke the owner’s right without his or her consent.
What types of vehicles can be parked in the community? Ideally, the declaration or master lease lists the types of vehicles that can be parked in the community. Sounds simple, but it isn’t. The declaration may state that trucks may not be parked in the community, but have you looked around the parking lot lately? Is an SUV a truck? Is a hybrid vehicle a truck? What is a commercial vehicle?
If you are faced with vague or ambiguous language, create a detailed definition for each type of vehicle you want to incorporate into the association’s rules. For example, the definition for “commercial vehicles” may mean any vehicle that shows any commercial markings, signs, displays, equipment, inventory or apparatus, or otherwise indicates a commercial use.
How many cars per unit may park on the premises? It’s hard today to imagine a community in which there is one car per family or unit, but if your governing documents were recorded in the 1960s, that was typical. Perhaps land was at a premium when your community was developed, and the number of spaces exactly matches minimum requirements of the building code. Today almost every adult seems to have a car, and when you add teenagers or roommates to the mix, there can be three or four cars per home. There are only so many guest spaces and unassigned spots in any community.
One condominium solved the problem by purchasing a small parcel of land across the street from the building, converting it into an additional parking lot. You will need to verify that the association has the authority in the governing documents or applicable statutes to purchase property on behalf of the owners. Be sure to get assistance from the association attorney to determine what approval will be necessary.
Another association re-striped the parking lot and extended the lines to enable owners to park one car behind another. Ultimately, it may be necessary to limit the number of vehicles that can be parked per unit or home, requiring the overflow to park outside the community.
Can the association regulate guest or visitor parking? The community’s governing documents usually give the board the authority to control unassigned parking spaces and to make rules and regulations related to temporary, short-term parking. The board can prohibit parking on the lawn, in an emergency zone, in front of a fire hydrant or anywhere that blocks a sidewalk, another driver’s view or an emergency vehicle’s access.
Can the association charge a fee for guest or visitor parking? The right to charge a fee would have to be in your governing documents. Also, check with the association attorney to ensure such a fee isn’t prohibited by state law. Determine when the fee would be charged. For example, there might be a fee for overnight parking in a guest space, but not for a guest visiting for the evening or the day. Before adopting rules, analyze the situation carefully. Will the rule punish the good guys? If only one owner is causing problems, adopting a rule affecting everyone would not be the best solution.
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