A discussion of routine & complex issues which confront all types of shared ownership communities.

Condo and HOA Law Blog By Donna DiMaggio Berger, Esq.

Condo and HOA Law Blog By Donna DiMaggio Berger, Esq.
This blog covers every topic under the sun related to condominiums, cooperatives, HOAs, timeshares and mobile home communities from the unique perspective of attorney Donna DiMaggio Berger.

Monday, January 04, 2010

The parking space dilemma in today's condominiums and cooperatives.

Decades ago when many of our South Florida condominium and cooperative buildings were first constructed, the issue of whether or not there were enough parking spaces to accommodate the residents' needs was not an issue at all. The norm was one or two cars per family; a far cry from today's family with multiple drivers with multiple cars.

Parking today in many of these older condominiums and cooperatives can easily become one of those issues that pit neighbor against neighbor. Boards would be well advised to meet with association counsel to discuss the number of parking spaces available, the nature of each parking space and what reasonable rules and regulations can be passed to fairly address the needs of owners, visitors, workers and the handicapped.

Some communities are unaware whether their spaces are common elements (owners each have a pro rata or percentage share of ownership), limited common elements (reserved for the use of a certain unit or units to the exclusion of others as specified in the Declaration) or appurtenances to the unit (conveyed via deed or via the Declaration to a particular unit and thus, not subject to divestiture).

You must first know the answer to the question, (what kind of parking space is this?) before you can decide what steps the board is empowered to take to control its use. Some communities I see have extremely limited parking facilities; in those instances, it might be reasonable to limit parking use to one or two vehicles. Potential purchasers or tenants with more than the allotted number of vehicles must be told up front about the restriction and, as with any use restriction, it must be routinely and uniformly enforced in order to maintain its viability.

Of course, there a myriad of issues that touch on the issue of parking in a common interest ownership community. Who gets first dibs on the prime handicapped spot by the pool? Can unauthorized cars and disabled vehicles be towed? Can owners with certain parking spaces be forced to pay for maintaining and repairing those spaces? What should be done about the owner who parks a second or third car constantly in the guest spaces?

These questions should be discussed with your association attorney in order to formulate a parking policy that not only meets your community's needs and concerns but also withstands any potential challenges.

25 comments:

Anonymous said...

I live in Mystic Point 600 Condo.(240 units) in Aventura, Fl. They say by state law they are required to have 41 guest parking that only the parking attendents can use. Is there a State Law requiring this? Can resident have a temporary monthly permit and be treated as a guest? With a permit can a guest park their own car in a guest parking space?
Thanks
Don

Donna D. Berger, Esq. said...

Don,

Your parking is governed strictly by your documents unless you have certain facilities that are open to the general public in which case the Americans with Disabilities Act (ADA) would apply. You will need to review the pertinent provisions in your governing documents regarding parking to ensure that they are being followed. Of course, documentary provisions and Board rules are subject to challenge if you believe they are unreasonable or being unreasonably applied. Good luck.

Anonymous said...

Is there a rule on the number of handicap spaces that can be provided in a community. This is an HOA and the docs say every unit owner is entitled to one covered space and one guest space. However, they are silent regarding handicap spaces.

Anna said...

I rent in a condo building that recently changed it's access to parking spaces, making it mandatory that the access pass be afixed to my car (access is not a barcode sticker on my car instead of a remote to open the gate). I understand that I can only use one spot as per my lease, but I feel like I should be able to park whatever car I want there, and they chaned the polciy mid lease w/o prior notice. Do I have recourse, are there laws regulating this, and what laws were you citing in your original article?

Miriam said...

I live in a condo that provides 2 parking spaces for my unit. I only use 1 since I have a young child, therefore, I only have one car. I have a neighbor who needs a third spot and I want to know if it is against Florida condo laws for me to allow my neighbor to use my second parking space. The association has said it is against Florida condo laws for me to allow anyone whom does not live in my unit address to use that space. Is this true? Can the association make up rules as they go? I had a neighbor who used that space about year ago and there was not a problem then?? This neighbor has since moved.

Anonymous said...

I've been given the same parking space for the past 18 years which is near my unit. The association recently gave me a different space which is much further away. What can I do to insure I still can use my current parking space? Thank you

Rod said...

I live in a condo here in Maryland and currently all residents have ONE main parking permit (spaces marked as "permit" required). Also, all residents are given TWO "guest" parking permits that must be used from 12midnight-7am M-F in these "unmarked" spaces. I went to a board meeting in the past and suggested going to an "assigned" parking rule and they immediately said NO because its illegal and they cannot legally tell a resident where to park. Is this true? I find it hard to believe because other condos in my area do have assigned parking rules. Thank you.

Anonymous said...

When we moved in there were ample handicap spaces. Since the repaving of the parking lot there are only 1 designated spot for handicap. Can they so this legally? What about the ADA?

Donna DiMaggio Berger, Esq. said...

Most of the questions on this discussion thread can only be answered by knowing whether the parking spaces involved are appurtenances to the unit (meaning they are owned by the individual along with his or her unit) or are limited common elements or common elements that can be freely reassigned by the board when circumstances arise requiring such a reassignment to other owners with disabilities who need a closer parking space.

In terms of number of handicap spaces required, each municipality and county is different so the starting point is to review your local ordinances to see what is required. The Americans with Disabilities Act (ADA) pertains generally to work places and not to residential communities. The Fair Housing Amendments Act pertains to multifamily communities and outlines which accommodations must be made for residents with verifiable handicaps.

Donna DiMaggio Berger, Esq. said...

If an owner owns his or her parking space as an appurtenance to his or her unit then it typically is possible to lease out ues of that space to another owner unless the governing documents expressly prohibit that practice. Of course, once the owner sells the unit, the space must be conveyed along with that unit.

When the parking spaces are not appurtenances to the unit but instead are common elements, there is not much you can do to safeguard the association reassigning spaces in accordance with the protocol outlined in the governing documents. Buying in a community where parking spaces are common elements carries with it the risk of your space being reassigned at some point.

Jay said...

Ms Berger,
My Fiance' lives in a condo where each unit is assigned one parking space. There are approx. 300 units in her building with a 4 story parking garage holding 375 spaces. The fourth level of the garage (top) is open to the elements and is where guests are required to park. The association recently sent a letter saying that they will be "re-sealing/waterproofing" the fourth level and that it will take 4 months to complete. During this time there will be no guest parking on the premises. They suggest that guests park on the street until the repair work is complete.

Four Months seems a bit long to force all guests of the 300 unit complex to park in the street (which has approx. 10 spots in front of the building). Is there any law prohibiting the removal of guest parking for that long, without making some sort of temporary arrangements? Thank you in advance!

Donna DiMaggio Berger said...

There is no law I am aware of that would prevent the association from suspending guest parking while repair work is being done. Moreover, most contractors do recommend removing vehicles to prevent damage to same throughout the course of the repairs.

That being said, 4 months does seem like a long time and I wonder whether or not the inconvenience can be minimized with better planning and coordination with the contractor. Why can't other vacantt spots be used for guest parking while the 4th floor is being repaired?

With 300 units, I'm guessing there are some other residents that are going to be similarly upset about a 4-month stint parking on the street. Perhaps your members can present some viable alternatives to the board. If your board still doesn't wish to make things a little easier on the residents, I foresee a new board being voted in after the project is completed!

Anonymous said...

I live in a New townhouse community in Naples, Fl, we have no documents about rules and regulations. The new board decided to prohibit all types of commercial vehicles and limit the parking spaces to two. In my case my husband has a company car and my son already drives, so I have a big problem. I want to know if this is legal because I wasn't inform when I buy. Thanks

Adam Bergman said...

Hi Ms Berger. I live in a condo in Chicago. Long story short, we have a pizza restaurant that is coming into our building. The building is 5 years old and the retail space has never been used. Since it was not made for a restaurant, they will need to build a large pipe to vent out the smoke from the oven. This we always knew. What we just found out today is that the 30,000 lb oven cannot be supported by the ground floor, so they will need to bring in large steel beams into the garage. This large construction project will disrupt access to our deeded parking spaces for perhaps a week, or two.

My question is, as deeded parking space owners, do we have the right to fight this. Many of us have babies and little kids and this will be a huge hassle, not to mention scary to have a 30,000 lb oven that currently is too heavy by the building's standards.

Thank you from Chicago :)

Adam

Adam Bergman said...

Hi Ms Berger. I live in a condo in Chicago. Long story short, we have a pizza restaurant that is coming into our building. The building is 5 years old and the retail space has never been used. Since it was not made for a restaurant, they will need to build a large pipe to vent out the smoke from the oven. This we always knew. What we just found out today is that the 30,000 lb oven cannot be supported by the ground floor, so they will need to bring in large steel beams into the garage. This large construction project will disrupt access to our deeded parking spaces for perhaps a week, or two.

My question is, as deeded parking space owners, do we have the right to fight this. Many of us have babies and little kids and this will be a huge hassle, not to mention scary to have a 30,000 lb oven that currently is too heavy by the building's standards.

Thank you from Chicago :)

Adam

Adam Bergman said...

Hi Ms Berger. I live in a condo in Chicago. Long story short, we have a pizza restaurant that is coming into our building. The building is 5 years old and the retail space has never been used. Since it was not made for a restaurant, they will need to build a large pipe to vent out the smoke from the oven. This we always knew. What we just found out today is that the 30,000 lb oven cannot be supported by the ground floor, so they will need to bring in large steel beams into the garage. This large construction project will disrupt access to our deeded parking spaces for perhaps a week, or two.

My question is, as deeded parking space owners, do we have the right to fight this. Many of us have babies and little kids and this will be a huge hassle, not to mention scary to have a 30,000 lb oven that currently is too heavy by the building's standards.

Thank you from Chicago :)

Adam

Donna DiMaggio Berger said...

Hello back to Chicago from a fellow Chicagoan here! What you are describing is a material alteration and if your community was in Florida, it would require membership approval. You will need to review both the Illinois Condominium statute as well as your association's governing documents to determine if a membership vote is required for this project. Even if such approval is not required, if enough of your neighbors feel the way you do, your board risks being recalled as a result of an unpopular decision.

Adam Bergman said...

Wow! That was such a quick response!! Thank you so much. It's not the board so much that we're worried about....we're all on the same page. It's the developer. Tonight, we met with the restauranteer, who feels like it's his right to go ahead and do this. Our board will fight this and I'm sure they will hire an attorney. I just wanted to get a little legwork done in advance. Our developer has already cut so many corners in this building it seems and I'd hate for us to be subjected to danger or the hassle of losing our parking during their construction. Thanks so much fellow Chicagoan :)

Donna DiMaggio Berger said...

Ah, that is a different story. Your developer may very well be guaranteeing a post transition lawsuit. I suggest your board hire an experienced attorney asap. It is always easier to stop a project like this than to reverse it after the fact.

Good luck.

Anonymous said...

Hi Ms. Berger, We have a dilemma in our condo wherein there are very limited parking spaces and used on a first come first serve basis if available. We give out parking stickers. Some units have been combined and those unit owners claim they should get more than one sticker because they still pay for maintenance on two units. This is in Florida and the condo docs don't specify. What are your thoughts?
Thanks, Maggie

Anonymous said...

Hi Ms. Berger, I have a good one for you. My condo has about 150 units and about 300 parking spaces below ground, each one is assigned and they are either single spaces or tandem spaces. Each space is deeded. Tandem spaces tend to be located in the center of the garage floorplan while most of the spaces up against the outer walls of the underground garage are single spaces, to be parked "nose-in." However, the building has an oddly angled footprint so that after a certain point, the spaces against the wall go from "nose-in" to parallel where the building gets narrower. My space is the last nose-in space before the changeover to spaces where the car must be parked parallel to the wall.
A new neighbor (who does not live in the building but has purchased a single space) bought the space next to mine - a parallel to the wall space. However, he is parking two vehicles "nose -in" as well as a Vespa. When my neighbor on the other side is home and the neighbor across from me is home, I have to do roughly a 27-point turn to get my car out of my space. If they are away, I can angle my car into their spaces to get in or out. My new neighbor's cars are small - one is a Porsche 2 seater.
I contacted my building manager who contacted the trustees and told me there is nothing that they can do - the car(s) does/do not stick out into the common area. That may be technically true, but the space was sold as a single space, and although the cars don't stick out, they greatly inconvenience me getting in or out of my space (no problem with the previous owner who parked normally.

Is there anything I can do? Not to mention that the trustees seem to have violated their fiduciary duty, it would seem, by allowing the sale of a space being used for 2 vehicles at the price of a single space. (the trustees have been generally ineffective and seem to favor themselves and their friends in all other situations).
What can I do?

Jessica D said...

Hello, I live in a town home community where those who don't have a garage just have parking spots in front of their town home, but you're not assigned a parking spot of your own. This is becoming a problem because they are building more townhomes but not extra parking spots so people are parking in front of my town home and I have to park far because there is no space available in front of my town home. Is it legal to not enforce reserved spots if you own your town home. I pay a mortgage just like everyone else, and it's very frustrating not to be able to park in front of my own home!

hernandez706 said...

Hello. I live in a condominium in Fontainebleau (Miami-Dade). I have been advised by the "management office" that we cannot have visitors park/stay overnight. They say there is not enough parking for visitors and that anyone violating this rule will be towed by 1AM. In the past they would issue parking permits for our guests, which would prevent them from getting towed. Now I can't have anyone visit me! Can they do this? Thanks.

Donna DiMaggio Berger said...

The starting point to determine whether or not a parking restriction like the one you describe is permitted is to check your governing documents to find if the board is authorized to (a) regulate parking and (b) tow. Towing in particular requires the proper use of signage in restricted areas.

If there are only so many spaces, particularly in older communities which were built before families had multiple cars, then that is a factor folks must understand when choosing to live in that community. However, if the board in this case is just being unreasonable then certainly the community members may wish to elect a new board that handles matters differently.

Anonymous said...

Our condo assoc. in Boca Raton, FL is more than 35 years old. Each unit owner has, by deed, either 1 or 2 assigned garage parking spaces. There are ample spaces in the common area to accommodate guests and service vehicles, day-to-day. Recently, new owners are bringing 3 or even 4 vehicles which means 1 or 2 are parked continually in the limited common spaces leaving fewer for the purposes for which they were intended. We have no written policy. No one wants to be the enforcer, of course! This is just poor management; should have known this at the interview before the closing. Anything we can do now? Write a policy?

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