Whenever I am asked these questions, I always start with, “What do the documents say?” How were these special parking privileges awarded to owners? How are parking spaces described in the Declaration and By-laws, and do those documents say anything about the transferability of these special rights? Are the parking spaces simply licensed or are they limited common elements? If licensed, are they assignable, and if so, on what terms? If there is an ambiguity, the Offering Plan might help clear up questions in its disclosure. (On the other hand, the Plan might be completely silent about parking privileges, in which case the Sponsor may not have had the right to grant special parking privileges in the first place.) Did the Sponsor collect money from owners in return for these privileges? (Was the sponsor entitled to do so?)
If you don’t have a clear answer even after reviewing documents, you need to go back to first principles. Licenses are generally personal, i.e., they cannot be assigned or transferred unless specifically permitted in the agreement. A limited common element is intrinsically linked with the Unit, though, so it would go along when the Unit is sold. Regardless of their status, the Association should establish rules for use of the spaces, including creating a waiting list in case someone abandons one or is foreclosed, and considering a license fee to cover the relative costs of insurance and maintenance.
Spolzino Smith Buss & Jacobs LLP
733 Yonkers Ave
Yonkers, NY 10704-2635
(212) 688-2400 ext 4102
If there is a Master Deed or Declaration of Covenants and Restrictions, those documents should tell you whether or not the Association controls the parking spaces in question as common elements. Any sale should have been accomplished by Master Deed or Declaration amendment, as the transfer of spaces would have diminished the property of the community. Such a transfer of title to parking spaces would have been problematic for a few reasons:
1. Such a transfer of Association property might have required subdivision approval from the municipality.
2. Generally, it usually requires a 2/3 vote of the membership and perhaps eligible mortgage holder approval.
3. Parking “Units” would have had to be created, and the municipality would have had to assign lot and block numbers to those spaces so that they could be taxed.
For these reasons, I will presume that a sale of spaces has not occurred.
If there was no sale, these “grandfathered” spaces are assignments, which, based upon tradition and history, the Board feels it would be unfair to reassign.
This doesn’t mean that the Board can’t reassign them, but rather, that after allowing those spaces to be assigned in the current fashion for so long, and having had Unit Owners rely upon that assignment to, for example, buy a vehicle for a son or daughter, the Board feels it would be unfair to make changes. Since the grandfathering refers to some of the original unit owners, the feeling must also be that the Board does not want to alter the promised made to them when they purchased their Units.
Griffin Alexander, P.C.
415 Route 10 Ste 6-8
Randolph, NJ 07869-2100
The grandfathering would be entirely dependent on what the documents say. You should have them reviewed by the Association’s counsel for the answer.
Thrasher Buschmann & Voelkel, P.C.
151 N Delaware St #1900
Indianapolis, IN 46204
Without seeing the relevant documents (old and new parking restrictions/rules and the document containing the grandfathering language), I cannot provide an opinion. On the one hand, I could argue the grandfathering goes with the unit since it was in existence prior to the rule change. On the other hand, I could argue that any owner purchasing after the rule change is aware of the new rule and takes subject to it. One must really look at the documents.
Austin Law Firm, LLC
226 E. Market Street
York, PA 17403