Q I am the president/secretary of our condo association in Chicago. We have a unit  that was foreclosed by the bank last summer and the owner moved out. We only  have outdoor parking. The assigned space for this unit is right outside the  back door. A short time ago, we offered the parking space to a nearby unit  owner in our building as a temporary second space until the unit is sold. He is  paying us rent on it. We, however, have an elderly couple in our building  living at the same address, different unit, who parks some distance away. The  manager and I agreed on swapping the parking space originally allocated as a  second space to this elderly couple, who’s a longer-term resident. We have mailed the second space owner a notice asking  for his cooperation in switching parking spaces. He has yet to do so. Being  that the bank foreclosed on the unit and it is still vacant, we feel we have  the authority to make this decision. Do you have any suggestions?  

 —Parking Problem  

A “The answer depends on how parking spaces are treated in the declaration,” explains attorney Nicholas R. Galasso from the law firm of Nyberg & Cassioppi, LLC in Naperville. “In other words, who owns the parking space in question? Look to the declaration and any applicable deeds that cover the parking space. Ownership could be vested in either the association, the bank (assuming  foreclosure proceedings are completed), or even some third party.  

 “Parking spaces are generally either “deeded” or “assigned.” If parking spaces are “assigned,” this generally means that the entire parking area is part of the common  elements. In this situation, unit owners do not own their assigned space or have any  exclusive rights to the space. Common elements are maintained by the association’s board, and thus the board has the power to actually assign common element  parking spaces. If the parking space in question is considered a common element under the  association’s declaration, the board may be able to assign the space to the elderly couple  without the consent or even the cooperation of John Doe (the renter of the  space). A word of caution: always be cognizant of the board’s fiduciary duty to the unit owners. See 765 ILCS 605/18.4; see also Salomon v. Astor Village Condominium Assn., 2001  WL 664404 (1st Dist. 2001) (unit owner stated a cause of action for breach of  fiduciary duty when the board gave unit owner too narrow a parking space and  failed to allocate parking spaces uniformly).  

 “If parking spaces are “deeded,” the spaces are either treated as a unit unto themselves or allocated to a  particular unit as a limited common element. If the parking space in question is a unit (i.e., it has its own percentage  interest—and a vote equal to that interest—in the composition of the association, is transferable by deed separate and  apart from any other unit, and is issued its own real estate tax bill), the  board has no power or ability to assign or allocate such parking spaces.  Ownership is vested in the person or entity with record title to the space (via  its own deed).  

 “If the parking space is treated as a limited common element, the space will be  assigned to a unit in the declaration, as set forth in the plat, and will also  be referenced in the deed to the unit. A limited common element is a common  element that is designated for use by a certain unit owner or unit owners to  the exclusion of other unit owners. Parking spaces that are limited common  elements may generally only be assigned through a transfer of the unit (because  the parking space is appurtenant to the unit per the declaration and deed) or  through a transfer of the limited common element between or among unit owners.  Thus, if the space is assigned to the foreclosed unit as a limited common  element, and the bank has gone through the entire foreclosure process and  received a sheriff’s deed, the bank would be the owner of that parking space. If the bank is the  owner of the parking space, the board and association may be violating an  assignment of rents in favor of the bank.  

 “Another consideration to address is whether one or both elderly persons are  handicapped, which may raise other concerns. The bottom line is that you and  your board should consult your governing documents and engage counsel to ensure  the board acts in accordance with all applicable documents and governing law.”