Nonexclusive vs Exclusive

Started by ChristinaR • 5 replies • 2073 views

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ChristinaR (Maryland)
Posts: 99

Posted:

I've asked this before, but I think I worded it wrong. Just to be clear our parking lots are part of our Common Areas.

Our Covenants state

"Section 2. Owners Easements of Enjoyment: Owner shall have a right and nonexclusive easement of enjoyment in and to the Common Areas which shall be appurtenant to and shall pass with the titile to every Lot, subject to the following provisions:

(d) The right of individual Owners to the exclusive use of a parking spaces as provided in this Article.

Section 3. Parking Rights: Ownership od each Lot shall entitle the Owner or Owners thereof to the use of not more than one parking space.

Section 4. Delegation of Use: Any Owner may delegate, in accordance with the By Laws of the Association, his right or enjoyment of the Common Areas and facilities to the members of his family, his tenants or contract purchasers who reside on the lot."

Our By-Laws don't state anything about parking except that the board may adopt a policiy and regulations that do not conflict with the Covenants.

Our board has adopted parking regs that limit the parking to Residents and Owners only. Each unit used to get 2 parking permits that could be interchanged between vehicles. The new board will limit that to one parking permit if you only own one vehicle, but people with 2 vehicles will still get 2 permits.

I feel as though this is a violation of our covenants. Can someone let me know if Section 2 reads as I see it. My plain enlgish interpretation is "The residents have nonexclusive use of all parking except for the ONE assigned parking space which can be for residents only."

I could be wrong, but I think the board is overstepping it's boundaries.

Thanks in advance for any input you can provide.

TimB4 (Tennessee)
Posts: 21,047

Posted:

Christina,

It sounds like your Association has a parking problem and the Board is trying to address it. I'm not sure that they are addressing it properly (which I'll get into later).

Per your post, The following is clear:

1. All members have a right to access the common area. This right transfers to each lot.

2. There are a few provisions that might limit this right (all were not listed).

3. Each lot has one assigned parking space for their exclusive use. This assigned spot may be reassigned to a different location but unless the document is changed, one parking space will always be assigned to a lot.

It appears that your BOD is attempting to limit how many more vehicles can be parked. My first impulse would be that they have the right to do this. However, because they are not treating each lot equally (giving two passes to each lot vs. giving one pass to one lot and two passes to another lot) I believe a case could be made for selective enforcement of guidelines. After all what happens if you purchased a home from someone in the complex who has only one pass but you have two cars and you discover your neighbor has three passes. Will the BOD take a pass away from someone?

The proper way to deal with parking issues is to assign an additional spot to each lot and the unassigned spots are on a first come first served process. If your BOD insists on using parking passes (which is fine) then the passes need to be handed out equally per lot and not based on how many cars each member has. If needed, more restrictive guidelines could be made concerning how long a vehicle can stay parked in an unassigned space.

I would suggest that you approach the board and point these issues out and make a make a motion that this process be reviewed by your Associations legal department prior to implementation. I believe your BOD will receive similar advise as those you will read here.

Bottom line, each lot must be treated equally.

Every lot gets x number of passes or they should scrap this approach and look at a different method of addressing the issue. Otherwise, they are setting the Association up for possible legal challenges (no guarantee that a challenge would win, as it would depend on the specifics, but a case could certainly be made).

Hope this helps,

Tim

MaryA1 (Arizona)
Posts: 7,043

Posted:

Christine,

IMO, your CCRs are very clear in stating that each prop owner shall be entitled to the use of not more than one parking space. You also state the CCRs give the board to the right to adopt parking rules. Unless they have adopted a rule stating members with more than one vehicle may petition the board for a second space, which may be granted on a first-come,first-serve basis, then they are in violation of the CCRs by arbitrarily assigning more than one space to a particular prop owner.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

I assume we are talking condos. Tim and Masry agree mostly with what we do also. I would point out that parking spaces are limited common property to be uised for parking, as the Board has the authority to decide or change. They can not be unequal, but perceptions can get in the way of reason. Some parking spoaces are side by side, some parking inspaces can be long enough to hold two cars. We believe the long parking spaces are counted as one space. One one space per unit but there are a large number of guests parking spaces for first come first use. Thisis fairer than the old where some had two and some had one. Also if you are not alert there will be some that will stencil out a guest spot and put in their #. With one spot per this little trick don't work. Also, we have in the past taken common property and made it limited in order to accomodate a charging station for golf carts. which incidently must pay for any storage on common property and any electric use on limited common or common.

ChristinaR (Maryland)
Posts: 99

Posted:

The BOD is not assigning 2 spaces to some and not others, but only limiting the parking permits. One space is reserved and the remaining are first come first serve. However, in limiting the number of permits to some owners and not all, I feel as though this is a violation of these homeowners nonexclusive rights to use the parking lots.

We are a townhouse community. We have 5 courts. 1 Court has driveways. They have been informed by the attorney that they cannot limit the parking in driveways.

They will give 1 parking permit to people who own one vehicle and two parking permits to people who own two or more vehicles. No more than two permits will be given. But the people with driveways, will now be legally allowed to park 3 (or 4 if they use their garage) vehicles, while just because I am a single homeowner with 1 vehicle, I can only park one.

People who do not own a vehicle will not get a parking permit, yet their assigned space will still be assigned to them.

We do have a parking problem with people parking 3 or more vehicles without parking permits.

I feel as though this board is not looking out for the best interest of the entire community, but more for their own personal issues. Two of the five board members live in the court with garages and two of the board members won't stand up to their bullying tactics.

At meetings he is constantly pounding his fist on the table and making unfair demands on the Management Company and other Board Members.

TimB4 (Tennessee)
Posts: 21,047

Posted:

Christina,

Are they going to have a lottery every year for the passes? They need to look at the parking per lot and not per member. Therefore, they need to issue permits equally.

At least thats my take on it.

Tim

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