[kevinhealey]

Hi,

I am the treasurer of an association, and I would like to find out how to get the answers to the following:

I need to prove that the association owns limited common elements like parking spots. Individual deeds don't show anything about deeded spots, but the original owners of the condo convinced the board to amend the declaration and allocate spots to each other, so I have questioned the legality of this type of act. I feel that our declaration says that the board can allocate spots to unit owners, and some are saying that they paid $$ for the "allocation". So some owners sold their spots and now 25 years later, everyone is saying that other people will never be able to get allocated spots...

Some owners say they made side deals with the builder for spots, and that they "own" them... and I said that if its listed on the plat in the deed's office then they don't own it.

Can you give me some legal clarity on this issue or some resources I can reference?

I feel that the board can change allocations at its discretion, especially if a handicapped person needs a garage space at some point.

Thanks in Advance,
KH

[ScottGem]

You need to run this by the association lawyer.

There are too many variables here. Did the builder provide at least one parking slot for each unit? If so, then the usual thing is the include one slot for each unit with additional slots being purchaseable or used for guests. The HOA should specify how this is handled.

If an owner bought their parking spot from the builder, then they should be listed on their deed.

[kevinhealey]

Thanks for trying to help,

The board won't ask our attorney... and wants me to answer these questions first, and prove that there is a legal problem here.

The condo has 40 units... only 15 indoor spots, and every owner gets an outside spot. The declaration states in a random manor who gets allocated a spot. My unit had one originally, but some previous owner allowed someone else to get the allocation and it shows as an admenment.

Any advise as to how to prove to them that the assoction owns all limited common elements and that there is a specific document that shows that the association owns the spots and not an owner? If their deed doesn't say it, are we safe to say the associaiton "owns it?"

[ScottGem]

Excuse me? The board won't ask their attorney? Isn't the attorney on retainer for questions like these? Why would they ask you to get a legal opinion.

Without reading the HOA documents I couldn't say for sure.

[kevinhealey]

Hi Scott,

Here is the exact response I got from the board.. any help you could point out would be greatly appreciated.
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I have been intrigued and, frankly, astonished by some of the content of the e-mail communications that have come forth on the matter of "allocation", "ownership" and governance of inside parking spaces. I am also distraught that a simple request on Kevin’s part for a regulatory scheme has been catapulted into an issue that conveys, rather unwisely and unjustifiably, the impression that we have a crisis on our hands.

In the absence of a Board vote to the contrary, I will not be submitting this matter to Association Counsel. The matter can be disposed of fairly easily once clarity is brought into the whole affair. As it stands right now, there appears to be a serious degree of misunderstanding surrounding the concepts of "allocation", “ownership" and governance of limited common elements. Before I give you my opinion in this matter, I would appreciate it if Kevin could substantiate a few assertions that he has made, namely:
1. Where specifically on the Declaration of Condominium does it state that “the allocation of spaces is done by the Board”? Could you please scan and e-mail the relevant section?
2. On what specific language of which governing document do you base your assertion that the “Association owns” limited common elements?
3. On what specific document do you rely to establish a legal transaction whereby the Association acquired ownership of inside parking spaces?
4. On what specific language of which governing document do you base your assertion that the Board has “absolute” and “full authority” to engage in either a rotating or “first come first serve” basis for allocation of inside parking spaces?
5. On what specific language of which document do you base your assertion that “the declarant was required to state in the Declaration what spots are the property of the Association”?
6. On what specific language of which document or, alternatively, on what principle of condominium law do you base your assertion that a builder does not have the right to sell a limited common element prior to divesting himself of 100% of his fee simple ownership status?
7. On what specific language of which governing document do you base your assertion that the Association “should be able to change allocations at its discretion”?

Kevin, in order that I may render to the Board a legally sound opinion that is specifically responsive to your positions, I need for you to e-mail me the relevant language of all governing documents upon which you ground your assertions. Please understand that I am not asking for your interpretation of the language; what I need is the specific language that has caused you to make the above-stated assertions.

[ScottGem]

Ahh now I understand. And I agree with what he's saying. You are making some assertions and he is asking you to cite where in the association bylaws or other legal documents that backs up your assertions. I think he's taken a reasonable approach.