Q&A: Improper Use of the Common Elements

Q We have a resident who winters in Arizona and allows her children to store their patio furniture in her garage space. She also asked her garage neighbors (they no longer drive) to rent their side of the garage to a friend of hers, who needed to store a sports car for the winter. So, we now have strangers coming on to the property to retrieve their items, who also have the security codes to open the garage doors. Our garage banks are detached, are two-car size, and are part of the common elements with two neighbors sharing a garage. None of us pay an individual tax bill for that space; it is part of the association expense. I can find nothing in our declaration or rules and regulations regarding this scenario.

We do not know if an owner can allow non-owners and residents to use the common elements in this manner. The board and many residents do not want this practice continued. We do not allow renters in our association but the owner is probably not charging rent for her space although the neighbors are. We feel that only owners/residents who live on-site should be using those garages and not inviting outsiders to rent/use the space when they are gone. To complicate matters, we do have an individual who shares a unit but does not own and rents an empty garage space from another owner. The board feels that a resident who lives on-site and uses another owner's vacant garage space is OK. We do not want our property being used as a public storage facility and losing the security of the garage codes. What action can we take?

—Concerned in Cicero

A “Since the garages here are common elements, the condo board can reasonably regulate their use,” explains Jim Slowikowski, an attorney at the law firm of Dickler, Kahn, Slowikowski & Zavell, Ltd. in Arlington Heights. “A rule will be enforceable if it is reasonably related to a legitimate purpose, which includes health, safety and welfare. If the rule is intended to address those things, it has a good chance of being enforceable. There are several things here the board may be able to regulate.

“Although the board might try to adopt a rule that prohibits storing personal property of non-residents, it would be very difficult to enforce. If unit owners are allowed to store personal items in the garage, it will be difficult to prevent the owner from storing otherwise acceptable items simply because they may not belong to the owner. Rather, to address the concerns presented here, the board might focus on what and how materials are stored in garages, and who may have access. The board can adopt rules prohibiting anyone except the unit owner or unit occupants from entering the garage without the presence of the unit owner (or a unit occupant), and could prohibit unit owners from giving out security codes to any other person who is not a unit owner or resident of the property. The board could prohibit renting garage space since it is common elements, except as part of residential lease of the entire unit (if leasing is allowed). Since the garages are shared, restricting access to non-residents without the unit owner or occupant seems reasonable for security purposes. The board can also prohibit storing dangerous materials in the garage, and can require that any items kept in the garage must be kept in a clean, neat, orderly and sanitary manner. The board can require that the unit owner keep the garage free and clear so as not to prevent or interfere with parking vehicles in the garage, or to interfere with the ability to move around within the garage. This may reduce the likelihood that someone else wants to store furniture or other items in the garages. By focusing on these types of things, the board may be able to achieve a goal of preventing outsiders from using garage space as storage.”

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  • Our condo has a parking garage as a common element. It has limited spaces. The board is leasing the spaces to the owners. There are several old owners who are renting the spaces for a very long time like decades and this results in the new owners to be waitlisted and never getting the opportunity to use a common element. The number of new owners are less than the owners who currently rent the garage spots so if the board votes this idea nothing will change. Additionally all the board members have a space in garage as well. That is because nobody wants to change the garage rules like switching to a yearly lottery system for spaces. In this case what can the new owners do?