Parking

Do You Need to Park Your Parking Privileges?

Parking is always a hot button item in common ownership communities. Everyone wants the ability to park as close to their home as possible.

Therefore, restricting an owner’s use of parking because the owner is in violation of the association’s governing documents or is delinquent in the payment of association assessments is a powerful tool in obtaining compliance or payment from an owner. Proceed with caution before you decide to suspend an owner’s use of parking within your community.

Most associations have in their declaration or bylaws a provision which delegates to the board of directors the power and duty to collect assessments from owners as well as the power and duty to create and enforce rules and regulations regarding the use, occupancy and maintenance of the common areas or general common elements. Additionally, the governing documents may state that the board of directors has the power to create and enforce rules regarding parking within the association. Therefore, boards over the years have interpreted that these provisions allow them to create rules suspending parking if an owner is delinquent in the payment of assessments or found in violation of the governing documents. These rules created by the board worked to help cure delinquencies and compel compliance with the association’s documents.

However, over the years the courts in Maryland and Virginia have both stated that an association may only take actions that are specifically allowed in its governing documents.

On June 23, 2017, the Maryland Court of Appeals issued its opinion in Elvaton Towne Condominium Regime II, Inc. v. Rose. One of the issues brought up on appeal was whether the association had the authority to implement a rule temporarily suspending a delinquent unit owner’s right to use the common element parking lot and pool. Here the association’s governing documents provided the board the authority to collect assessments, adopt rules and regulations regarding the use of the general common el- ements, and adopt rules regarding parking within the association. The board adopted a parking policy that stated an owner’s right to use the pool and to park in reserved parking spaces assigned shall be suspended if the owner becomes more than 45 days delinquent in the payment of assessments. The association sent notice to Mr. and Mrs. Rose informing them that if they did not cure their delinquency that their ability to use the pool and assigned reserve parking space will be suspended pursuant to the rule adopted by the board. Subsequently, the association recorded a lien against the unit and filed a lawsuit against the owners for delinquent assessments. The Court of Appeals held that in a condominium each unit owner has a percentage interest in the common element property of the association and that interest is appurtenant to the unit. Therefore, the use of the common element property is not a privilege afforded to the unit owner but a property right by virtue of ownership and therefore cannot be taken away by the board by simply adopting a rule. The court held that to suspend someone’s property right, even if temporary, is a “taking” and must be explicitly stated in the recorded declaration for the association. Because the declaration for Elvaton did not explicitly state that the association can suspend or restrict use of the common elements when an owner becomes delinquent Elvaton did not have the authority to adopt and enforce a rule suspending use of the pool or reserve parking.

Recent case law in Virginia suggests that associations should have clear and express authority to impose parking suspensions in their recorded governing documents prior to doing so. The case of Shadowood v. Fairfax County Redevelopment & Housing Authority narrowly interpreted the extent of an association’s authority to assess violation charges. In that case, the court ruled that the condominium association’s board of directors did not have the authority, through a board-adopted rule, to assess violation charges against a noncompliant unit owner, as that association did not have express authority to do so in its recorded covenants. For the court, it was insufficient that the condominium association’s board of directors had the authority to generally adopt rules; instead, the determining factor was the fact that the recorded covenants did not give the board the authority to either assess violation charges or adopt specific rules that would give it that authority. As the statutory provision addressing an association’s authority to suspend privileges is the same statutory provision evaluated in this case, it is likely that a court reviewing an association’s actions in suspending parking would follow a similar analysis.

Even if your association’s recorded governing documents provide clear and express authority to suspend parking, be aware that Virginia law requires that certain due process procedures first be followed prior to the suspension of parking privileges. Provided that an association’s governing documents expressly so provide, Section 55-513(B) of the Virginia Property Owners Association Act (or Section 55-79.80:2(A) of the Virginia Condominium Act in the case of a condominium) permits the board of directors to suspend a member’s right to use facilities or services, including utility services, provided directly through the association for nonpayment of assessments which are more than 60 days past due, to the extent that access to the lot through the common areas (or unit through the common elements in the case of a condominium) is not precluded and provided that such suspension shall not endanger the health, safety, or property of any owner, tenant, or occupant..”

Section 55-513(C) of the Virginia Property Owners Association Act (or Section 55- 79.80:2(B) of the Virginia Condominium Act in the case of a condominium) further provides that before such suspension is imposed, “the member shall be given a reasonable opportunity to correct the alleged violation after written notice of the alleged violation to the member… If the violation remains uncorrected, the member shall be given an opportunity to be heard and to be represented by counsel before the board of directors or other tribunal specified in the documents.”

The District of Columbia has not adopted any such case law or such provisions in the D.C. Condominium Act. Ideally, your governing documents will contain such a provision that will allow for the suspension of parking if an owner becomes delinquent or is found in violation of the governing documents. However, if such a provision is not found in the governing documents, in D.C. the board can adopt a rule to suspend park- ing if an owner becomes delinquent. Keep in mind though that if you are going to suspend parking in a D.C. condominium for the non-payment of fees that were assessed because of a violation of the governing documents, you want to make sure that the association followed the procedures in Section 42-1903.08(11) of the D.C. Condominium Act prior to assessing the fines. Also, any rule adopted by the board should be disseminated to all of the owners so that they are aware of the new policy. The most recent amendments to the D.C. Condominium Act added a provision defning a unit own- er in “good standing.” The act states, “Unless otherwise defined in the condominium instruments, a unit owner in good standing shall mean a unit owner who is not delinquent for more than 30 days in the amount of any amount owed to the unit owners’ association, or a unit owner who has not been found by the unit owners’ association or its executive board to be in violation of the condominium instruments or the rules of the unit owners’ association.” Therefore, when you are drafting your rules for suspension of parking in D.C. you want to make sure you use the phrase, “owner not in good standing” to define owners who may be subject to such enforcement.

So, do you need to take your parking rules and park them on the curb? Maybe, maybe not. It really depends on the location of your association and the details in your association’s governing documents. Our advice, is to reach out to your attorney to have him or her take a look to make sure your rules will work for your community.

 

By Bruce Easmunt, ESQ. and Nicole Williams, ESQ.

Bruce is a senior associate in the law firm of Chadwick, Washington, Moriarty, Elmore & Bunn, P.C., and the current Chapter President. He has authored articles in Quorum, presented at CAI education seminars, and chaired the WMCCAI Outreach Committee. Bruce was awarded the WMCCAI Rising Star in 2011, Committee Chair of the Year in 2012, and Educator of the Year in 2015.

Nicole is an attorney with the law office of Rees Broome, PC, where she represents condominium and homeowner associations located in Maryland, Virginia, and D.C. She was named a Rising Star in 2013 and received the Chapter Appreciation Award in 2015. Nicole currently serves as the Co-chair of the Quorum Editorial Committee.

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