Publications
Parking, Parking, Parking
Published July 17, 2004 as
Parking spaces included in condominium bylaws
Consider this. The history of real estate law began around 1044 A.D. with William the Conqueror. The Illinois Condominium Property Act was adopted in Illinois in 1963, but really did not get going until more like, 1967.
The entire body of condominium law could not even fill one binder compared to contracts, torts, etc., yet it is so specialized and compartmentalized, I can take the license to write an entire column just about parking.
Peoples’ wheels are number one on the emotional scale of condominium living, followed by pets and children, in that order! Who parks where and when uses up more board and management time than probably any other administrative issue.
In Chicago, associations often lease out their entire garage to an independent contractor, just like the laundry room (in some instances, it’s the same companies). In the suburbs, townhome style condominiums have garages, driveways, private streets, parking slip, lots, etc. What is the legal status of these precious square feet of real estate? Who do you own, lease, borrow or trespass on?
It is crucial for each condominium owner to understand the legal status of their parking spaces, particularly if they intend to sell one. Sometimes a willing purchaser has unwittingly purchased the Brooklyn Bridge.
1. Parking Spaces as Units. These are the easiest to define and categorize. Sold either with or separate and apart from the dwelling unit, they are identified in the Declaration, the plats; they are assigned a percentage of ownership, pay assessments and are taxed by the county for real estate taxes. These are conveyed by deed which must be recorded.
2. Parking as Common Elements. Outdoor parking lots and sometimes indoor covered lots, have spaces marked out and are used on a first come, first served basis. Easy? Not so fast. Sometimes a board of directors takes it upon themselves to assign these spaces. The Illinois courts say that such an act is illegal (See Sawko vs. Dominion Plaza One Condominium Association No. 1-A, 21 Ill.App.3d 521, 578 N.E.2d 621, 161 Ill.Dec. 263 (1991). Sometimes the developer just gave everyone a letter. This one is much more difficult, especially when some people still have the letters and others do not. Characterized as a “right of use,” it should still be memorialized in some legal documents. the main issue is that they cannot be sold or conveyed. At best, they can be leased between owners, so long as there appears to be a paper trail.
3. Deeded Parking Spaces. Another relatively easy method of transferring spaces is to tie the unit ownership to one or more specific spaces and include this right in the legal description of the unit, e.g., “…and the exclusive use of parking space P-2.” There is no question about the legal status, however, the difficulty is in severing the space from the unit to transfer title. If the parking space is integrated into the legal description, separating and conveying it is no easy task and in many instances may be legally impossible.
4. Parking Spaces as Limited Common Elements. This designation makes the most sense legally, but makes for a lot of paperwork when transferred. Section 26 of the Illinois Condominium Property Act outlines a method of transfer which requires a “special” amendment to the declaration and hundreds of dollars in legal fees and recording costs to effect the transfer properly.
Therefore, it is important to know exactly what you own before you try and sell it to some poor unwitting soul.
Here are some other givens in considering parking space issues:
1. There is never enough parking. Sometimes you can create more by pouring concrete pads or building garages, but always remember a developer’s motivation was to cram as many dwelling units onto an acre that a village would allow and parking ratios in use in many municipalities are archaic (there is enough room for one car and one horse).
2. If you add parking to open land you must (a) check with the municipality to avoid running afoul of zoning laws and (b) check your legal documents to see if it is feasible without needing the approval of 100% of the owners.
3. You must have a sufficient number of handicapped parking spaces to comply with the law. Although some lots are grandfathered under current ordinances, the moment the association re-stripes or materially modifies the configuration, you are going to be held to current standards.
4. If someone requests a handicapped space and you do not have any left, you had better find one, make one or create one. This is a very sensitive issue and requires maximum effort at problem solving to stay out of the courthouse.
5. Lastly, if you tow someone’s car for whatever reason, the association will probably get sued. Signs posted, written notice, stickers, car appears abandoned; it does not matter. As I said before, wheels are number one on the emotional scale and people who have their cars towed create endless legal problems.
In summary, it is incumbent upon the board of directors and the property managers to understanding the legal nature of the parking so when an issue such as a conveyance takes place, the association can be prepared with the proper direction and documentation.
Also, the association must have a comprehensive set of rules and regulations and one of the keystone chapters should be about parking - vehicles permitted, unpermitted, abandoned or inoperable, snow policy, fire lanes, guest parking, etc. There are many nuances and as is the case with many areas of association governance, the more detailed, the better.