Q In our parking garage we have access to a bike storage room and an outside bike  rack that is next to a resident's handicapped parking spot. Right now the only  way to get to the bikes is to "trespass" over the parking spot. Our concern is  that if someone parks a larger vehicle or if we want to add more racks, we  might not be able to access the space. Also if someone were to damage a parked  car by trying to remove their bike, we will have a hard time managing fault.  Could a future owner of the spot deny access because of not wanting anyone to  trespass over the spot? Is the spot public or private property? In addition,  there is a trash room also next to a small parking spot and we could  potentially face the same problem of not being able to access the space because  of a vehicle obstruction.  

 The board told us that the developer has the right to sell both of these spaces.  Does the board have any say in the matter? Do they have the power to force the  developer not to sell the parking spots?  

 —Blocked in Bucktown  

A “The reader's question touches on a matter of great concern in many condominium  associations: specifically, what rights of access or easement do unit owners  have through other unit owner's limited common elements to get from place to  place or to get to other common elements,” says James R. Stevens, an associate at the law firm of Rock Fusco & Connelly, LLC.  

 Generally, limited common elements, such as parking spaces, get their existence  from the declaration. Usually, and it is hard to say exactly how this  association's declaration defines the parking spaces, but in a general sense,  parking spaces are parts of the common elements of the property that are  reserved for one owner's exclusive use. The declaration here may already  provide that other unit owners have a right to cross through this area to  access others. This kind of a right is called an easement or access right  across one person's property for the benefit of another. Easements can be by  permission or by necessity, meaning that an owner of a parking space (or the  declaration) may dictate that other owners can permissively cross over that  space to access the bike storage or trash areas. Easements by necessity are  easements that are granted because they must be there. If the trash room is  only accessible by crossing over the parking space, and from no other point,  then there may be an easement by necessity. An easement by necessity is usually  created when there is no other way to access the other common space.”  

 Here, the bike room and the trash room would need to have no other way to get to  them in order for an easement to be created by necessity. It is more likely  that the bike room and trash room are accessible, albeit difficultly, by going  through existing access points. Crossing over the parking spaces may be much  easier, but not essential. When the easement is not essential, negotiation may  be the best approach to a resolution. If an agreement is reached, associations  may choose to negotiate for a longer lasting type of agreement that could be  recorded with the declaration. This would be, basically, an easement that runs  with the parking space owner's interest.”  

 “However, if the developer owner of the spaces is not open to negotiation and  there is no other practical way to access these areas, the unit owners and/or  the association may want to investigate using legal process to obtain a  necessary easement across these spaces. Alternatively, if the lack of access to  these areas is a developer error, there may be other ways to approach it and  seek recourse from the developer.”  

 “Ultimately, the association does not necessarily have a means to force the  developer not to sell the parking spaces, but it may have some rights to adjust  how the limited common element parking spaces are used. The association here  should consult with an attorney who has reviewed their declaration and their  plat of survey to determine what the next best step would be.”