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?
—Right or Wrong?
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, a partner with the Chicago-based law firm of Chuhak & Tecson, P.C.
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.”