By Rebecca M. Vaccariello –
If you live in a condominium, the question of who owns your parking space, in addition to the questions of who is entitled to use it and who is required to maintain it, may not be as easy to answer as you would think. Problems often arise when the common practice of condominium owner’s conflicts with what the condominium declaration provides, and eventually a triggering event causes the conflict to come to light. If you do not know who owns your parking space, who is entitled to use it, and who is required to maintain it, you should learn the answers to these questions before a conflict arises. Preemptively handling these issues can mean the difference between maintaining the status quo as you know it, or being forced into an arrangement, years after buying your condominium that you did not think you were buying into.
1. Who Owns Your Condo Parking Space
The most common answer to this question is that the condominium association owns your parking space. It is possible for a condominium owner to own their parking space, and in this instance it would have been deeded to you and you would be paying taxes on it. The declaration should be clear in this instance that the parking space is not owned by the association. Even if you own your parking space, there are often limitations on transfer of condominium parking spaces done separately from the transfer of the unit, and you should be aware of this if you are considering selling your parking space separately, or buying a parking space separate from a condominium unit.
More commonly, the condominium parking spaces are either limited common elements or common elements and they are owned by the association. A “common element” may be used by any of the unit owners and it is defined by Florida law very broadly as “the portions of the condominium property not included in the units.” Florida Statute 718.103 (8). A limited common element is for the use of specific owners and is defined by Florida law as “those common elements which are reserved for the use of a certain unit or units to the exclusion of all other units, as specified in the declaration.” Florida Statute 718.103 (19). The first place to look when determining the nature of your parking space is the declaration. In some instances, the declaration will contain a diagram where parking spaces that are limited common elements are noted with the unit numbers that correlate to specific parking spaces.
2. Who Is Entitled to Use Your Condo Parking Space
If your parking space is a limited common element that is reserved for your unit alone, then you are the only person who can use the parking space. This is of course also the case if you own your parking space. If parking spaces are common elements, then any unit owner can park in any space.
3. Who Is Required to Maintain Your Condo Parking Space
In situations where the association owns parking spaces, the association may pay for the maintenance of the spaces and assess the owners for the costs accordingly. Florida law provides that “[t]he declaration may provide that certain limited common elements shall be maintained by those entitled to use the limited common elements or that the association shall provide the maintenance, either as a common expense or with the cost shared only by those entitled to use the limited common elements. If the maintenance is to be by the association at the expense of only those entitled to use the limited common elements, the declaration shall describe in detail the method of apportioning such costs among those entitled to use the limited common elements…” Florida Statute 718.113 (1).
If you have a limited common element parking space, it is often the case that the unit owners entitled to use the spaces will be assessed for the maintenance cost of the limited common elements. If you are in a condominium property that does not have parking spaces for all the unit owners, and you are a unit owner that does not have a parking space assigned, you should ensure that you are not responsible for payment of maintenance of parking spaces.
Common Problems and Issues That Arise
Some of the common parking space issues that arise are attempted transfers of parking spaces in violation of the condominium documents; maintenance costs of limited common elements being assessed to unit owners who do not share in the limited common elements; and general misunderstandings as to the status of ownership and rights to use parking spaces. The declaration is one of the most important documents to consult to determine the proper status of condominium parking spaces. Florida law provides that “[t]he exclusive right to use such portion of the common elements as may be provided by the declaration, including the right to transfer such right to other units or unit owners to the extent authorized by the declaration as originally recorded, or amendments to the declaration adopted pursuant to the provisions contained therein” passes with each unit. Florida Statute 718.106(2)(a).
Bottom Line
If you are unsure about the status of your condominium parking space, it is something that you may want to have clarified before a problem arises. Problems often come to light when a new owner enters the building and has had an attorney scrutinize the condominium documents prior to their purchase, or when a dispute arises as to who has the right to park where and an investigation ensues. If you are able to identify inconsistencies with historic use and the condominium documents ahead of time, you may be able to have the condominium documents amended accordingly.
This Article does not constitute legal advice and may not be relied upon as such. Each individual’s facts and circumstances are different. If you have any questions regarding your particular situation, please consult with legal counsel.
Rebecca M. Vaccariello’s practice focuses on business, probate and general civil litigation. Ms. Vaccariello is licensed to practice law in the states of Florida and New York. Prior to joining Salvatori, Wood, Buckel, Carmichael & Lottes, Ms. Vaccariello served as a judicial law clerk to a civil trial judge in New York for over five years, and, prior to that, worked for six years in a general practice litigation firm in New York.
Salvatori, Wood, Buckel, Carmichael & Lottes
239.552.4100 | www.swbcl.com