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SuzanneB2 (California)
Posts: 2
Posted:
I am on the Board of a small - 17 unit condo building in California. Several years ago (about 1999), a one bedroom unit (with 1 assigned parking spot) owner made an informal/verbal arrangement with the then Board to rent the one and only extra parking spot in the building for $30/month. When the unit was sold, the new owners assumed that same arrangement. The current Property Mgt Company has been billing this owner the $30 monthly fee on their HOA dues bill for several years. One of my fellow Board members approached the owner of the unit and asked if they could park their second car there exclusively since they were now not using it. They allowed this. None of this was disclosed to the other Board members or other home owners. As a Board member, I would assume he had an obligation to disclose this to at least us - the other two Board members? Until I located the buildings original parking grid, I never knew we had an extra parking spot. Now I have learned that the one extra parking spot has been rented for several years and now exclusively occupied by a Board member. This in essence took away the opportunity for every other unit to use what is rightfully theirs for several years. We have also lost out on several thousand dollars given the $30 monthly rate has NEVER been increased. I've been told the market rate would be about $150/month now -- if it was allowed to be rented out (and that the Property Mgt Company had a fiduciary responsibily to make sure we are bringing in the appropriate amt). When I asked our Property Mgt Company why this income was never reflected in the budget they prepared for us/sent out to all homeowners, they said they didn't know about it (despite being the ones to bill and collect the $30 monthly fee and despite it appearing on our cash flow statements.). This same Property Mgt Company and Board member have simultaneously told us we need to raise our HOA dues because we are not covering our expenses. Does anyone have any insight on this issue -- what CA law allows a Board or HOA to do (are we even allowed rent this pkg spot out if the HOA decided to?), what the obligations of the Board member are in this aspect? What the obligations of the Property Mgt Company are in this situation? I would think at a minimum they had an obligation to disclose this on the budgets and advised us that this rate should be at a current market value? And how could this have all been done with out the Board's knowledge or the other homeowner's approval? Thank you.
JeffR7 (California)
Posts: 251
Posted:
Suzanne,

You may not like my answer, but I think there is not much you can do. Let me explain why
- A board, likely a previous board, made an agreement with an owner to rent a spot for $30. There was no provision in that agreement to raise this fee, and no board since that time has revisited the issue. With this understanding owners did nothing wrong. They kept paying the amount that was agreed.
- Another owner, who just happens to be a board member, made a private agreement with the first owner to park in their spot. This owner didn't act as a board member, but rather as an individual. Unless your governing documents prohibit owners from letting others from parking in their spots, there is nothing wrong with the arrangement. This board member had not duty to notify the board because at the time he/she didn't act on behalf of the board. Think of it as any other two owners made an agreement related to parking.
- A management company doesn't have fiduciary responsibily to make sure you are bringing in the appropriate amount. They work for the board and their job is to implement decisions made by the board. I am not saying that they could't handle it better. They might have advised you that $30/month is too low of a rate, but they didn't have a duty to do so.

I think you have a very easy way out of the situation. You can discuss the situation with the board and if approved make a decision to terminate the rental. You'll notify the owner that the agreement is being terminated effective 60 days from the notice date. After that decide what you want to do with the spot. Maybe have a silent auction where everyone gets to bid 'their price' that way it will go for the maximum market rate possible.

Good luck.
SuzanneB2 (California)
Posts: 2
Posted:
Thanks Jeff - appreciate your response. I am getting conflicting information however. I fully understand that two owners can make a private arrangement between parking spots they own and have a right to, but this was the building's extra parking spot. It therefore belongs to all the tenants. I'm trying to understand if the owner and the then Board had any right to enter into an agreement whereby an asset (common property) belonging to all homeowners was then rented out for one unit's exclusive use should have ever been allowed. Wouldn't all the homeowners have had to vote and agree to allow this to happen? Isn't it like renting out the common area backyard or pool for one unit's exclusive use without getting all the homeowners agreement? They all own a portion of this one extra parking spot. Furthermore, there was no formal/written agreement w/ provisions. It was merely an informal/verbal agreement on a month to month arrangment. Wouldn't the current Board or HOA therefore need to re-vote on this arrangment to keep it valid? I've been on the Board (and a past President) for 5 years - it has never been brought to my attention. When you mention that the Property Mgt Company has a responsibility to carry out the decisions of the Board I understand that, but there was never a decision from this Board to have this arrangement. (I don't even see any documentation from past Boards that they ever approved it.). Thanks again!
JeffR7 (California)
Posts: 251
Posted:
I think in this case the board had the authority to rent the spot out. They didn't just transfer common area interest to anyone's personal exclusive use. They rented it out. Imagine if you had a very nice club house and someone (outside) wanted to use it for a party. Board probably (unless your documents prohibit it) would be able to rent it out. While this spot belongs to all owners, they were receiving a benefit from renting it out, no matter how small it is.

I don't think it makes sense to figure out the past. What happened - happened. How will you deal with it going forward. I would argue that since no contract exists pointing otherwise the board can vote to terminate it. Now you need to figure out what to do with the spot going forward. Keeping it empty - doesn't makes sense. Letting everyone use it - not practical. As I mention it in my previous post I would just do a silent auction to rent it out maybe for a year. Have an auction every year, this way it's fair and everyone gets to participate.

Another option is to create a visitor spot out of it, or a handicapped spot.

By the way, since your spots are not deeded, it is totally withing board's authority to assign them anyway you see fit.

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