Following the paper trail will resolve condo parking dispute

Question: We are a small (40-unit) condo that is about 10 years old. During the latter days of unit sales, one investor purchased the last eight units and was assigned a number of parking spaces (limited common areas per our documents).

The investor slowly sold off units and re-assigned parking spaces. No one questions his right to have done this, and these assignments were properly recorded.

However, after the sale of the last unit, he had one parking space that was never assigned to any of the sold units, and the investor ceased to own any unit, either in his name or any associated entity. He does not live at the condo.

Our condo documents state: “Parking spaces contained within the building shall be assigned by the Developer in its sole discretion, and once assigned shall be transferable only to Owners of units. The Association shall be given a copy of any document of transfer of any such space. Any owner who has been assigned the rights to such a space shall be entitled to exclusive use of such space. Once assigned by the Developer such spaces shall be limited common areas”.

The investor still believes he “owns” a parking space. I believe once he sold the last unit and did not assign the parking space prior to the sale, this limited common area reverted back to the association to do with as they see fit. Only an owner can “own” a parking space or be assigned a limited common area.

Who has the rights to this orphaned parking space? Can the investor “re-sell” it after two-plus years of no unit ownership? — C.T.

Answer: Based upon the limited information you’ve provided, I doubt that the investor still owns the space.

The language in your declaration is typical for parking spaces. The parking spaces are common elements. They are a part of the condominium property that is owned jointly and severally by all unit owners. Once the spaces are assigned, they become limited common elements.

Normally, a common element may be used by any owner, subject to temporary exclusive use rights (such as the use of a club room for a private party). But, a limited common element is one where one or more specific units have a right to the exclusive use of that element, and that right is “appurtenant” to the unit (the right is attached to the unit).

Under the Condominium Act, appurtenant limited common elements may be transferred between unit owners if allowed by the governing documents (as your declaration seems to provide), but there is no logical way that a non-unit owner can “own” a limited common element, or even the appurtenant right to use that limited common element. The only exception I can think of is if the investor not only bought the units, but also took an assignment of the developer rights.

Sometimes, the governing documents will provide that the developer can continue to assign unsold parking spaces, even after turnover. I’ve never examined whether such clauses are enforceable, but they are typical. But, absent that, when the investor bought his or her units, and was assigned parking spaces, those spaces should have been assigned to individual units.

While a unit owner, the investor was entitled to transfer the spaces among his units, or to other unit owners, but when the last unit was sold, that unit should have transferred with the last parking space (or that parking space was still attached to a different unit).

Either way, he would not have owned that parking space separate and apart from any unit. And, appurtenances can be returned to the relevant unit even many years after they have been wrongfully removed.

Someone needs to carefully review the original assignments and any interim assignments made by the investor to determine where the parking spaces started, and where they ended up. Then either the association or the unit owner with the appurtenant space should enforce their rights.

I have frequently seen situations where a developer either attempts to assign the same parking space to multiple units (usually due to sloppy record keeping), or unit owners without the power to transfer appurtenances have purported to do so, and those transfers must be corrected and unwound by the association.

Parking space disputes are fairly common, but they are often easy to solve — follow the paperwork and, generally, the first in time wins.

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