In many condominium associations, parking spaces, whether outdoor or indoor, are defined in the governing documents as limited common elements appurtenant to residential Units in that such spaces have been assigned or reserved for the use of one or more Units to the exclusion of other Units. Such assignment as to use may be specifically listed in the condominium association’s recorded governing documents, may be referenced in the deed of title to a Unit, or may be maintained on a list kept by the management company of Board of Directors.

Yet, it is not uncommon for the initial assignment to a Unit of use of a parking space to change or become lost over the years as the Unit is bought and sold and/or Owners unofficially grant use to other Owners or residents. Disputes can arise when the assignments of parking spaces are not diligently maintained and Unit Owners and/or the Board are unaware of which Units have use of which parking spaces, if any, especially in associations where parking is limited and use of parking spaces is highly coveted.

Some declarations may address the issue of transferring limited common elements between owners. However, the Illinois Condominium Property Act, (“Act”), Section 26 describes the procedure required to properly transfer a limited common element to another Owner, perhaps for the purpose of avoiding such disputes over use. Specifically, limited common elements may be transferred between unit owners at their expense by an amendment to the declaration executed by all unit owners who are parties to the transfer and consented to by all other unit owners who have any right to use the limited common elements affected. The amendment must be delivered to the Board and list the new assignment as well as address a change in the parties’ proportionate shares, if any. The transfer is not effective until the amendment has been recorded.

Not only does an amendment to a declaration officially document the transfer and assign use to a specific Unit to avoid possible disputes between current owners and/or potential purchasers, as required by Illinois law, but it is the only way to properly transfer limited common elements. It is our strong recommendation for Owners to follow the law. As an added benefit, the tracing the history of the assignments in previous years and resurrecting paperwork (recorded or not) will no longer be necessary.

Please contact KSN if your condominium association would like assistance on this issue.

By: Katharine W. Griffith, Principal at Kovitz Shifrin Nesbit

Katharine W. Griffith is a principal with the law firm of Kovitz Shifrin Nesbit and may be reached directly at kgriffith@ksnlaw.com or by phone at 847-777-7318.