Parking in an Illinois condominium or common interest community association setting can create many different issues for a board. Community associations may have to deal with everything from requests for parking accommodations made by unit owners to enforcing rules regarding the parking spaces and the use of same. Many times, a unit owner may be improperly using the parking area, or the area adjacent to the parking area and it is up to the board to make sure that the rules are followed.
In Illinois, the majority parking disputes that have risen to the level of litigation fall into four distinct categories: (1) whether the parking space or parking area is a common element or owned by one or more of the unit owners; (2) whether a request for a parking accommodation must be made for a disabled unit owner; (3) what uses are allowable in the area around the parking space by the unit owner; and (4) liability for injuries caused on parking areas maintained by the association. This article will focus on the first three types of issues, but if an injury does occur anywhere within the condominium or common interest community, the board should immediately retain legal counsel to discuss the board’s responsibility in responding to any claim and handling communications with and between the relevant parties.
Common Area Parking in a Condominium or Community Association
In condominiums and common interest community associations, the declaration and the HOA bylaws will typically define the areas owned by the unit owners, the general common elements that are owned by all the members of the community association, and the limited common elements that are owned by one or only some of unit owners. “Common Elements” is defined by the Condominium Property Act to “mean[] all portions of the property except the units, including limited common elements unless otherwise specified.” 765 ILCS 605/2. In a common interest community, the term “Common Elements” is a term defined as the “portion of the property other than a unit.” 765 ILCS 160/1-5. Limited common elements, although not a defined term in the Common Interest Community Association Act, is defined in the Illinois Condominium Property Act as a “portion of the common elements so designated in the declaration as being reserved for the use of a certain unit or units to the exclusion of other units, including but not limited to balconies, terraces, patios and parking spaces or facilities.” 765 ILCS 605/2. However, the language of the declaration and the condominium bylaws will control, and Section 4 of the Illinois Condominium Property Act requires that those documents designate the common areas from those areas owned by the unit owners.
In a traditional condominium, parking can be designated by unit in the declaration in a garage or parking lot, or spaces can be owned separately by the unit owner. If specific parking spaces are owned by the unit owners, those spaces will typically have separate tax identification numbers and the condominium declaration or bylaws will discuss the association’s maintenance obligations with regards to the parking area surrounding the individual parking space(s).
Whether the parking area is owned by a unit owner or is a general or limited common element is not always an easy or straightforward analysis. For example, in Sawko v. Dominion Plaza One Condo. Ass’n No. 1-A, 218 Ill. App. 3d 521, 578 N.E.2d 621 (2d Dist. 1991), the condominium association acquired a parking garage and then tried to restrict access to and assign spaces to certain unit owners. The Second District Appellate Court stated that when the condo association acquired the parking garage (using association funds), the entire structure became a general common element and the condominium association lacked the authority to restrict use of, or assign spaces within, the parking garage, without the unanimous consent of the unit owners.
Because the language in the condominium declaration and bylaws regarding the parking spaces or areas will control, any changes to those instruments will require unanimous consent of all unit owners impacted by the change. For example, in Schaffner v. 514 W. Grant Place Condo. Ass’n, Inc., 324 Ill. App. 3d 1033, 756 N.E.2d 854 (1st Dist. 2001), the condominium association (made up of three units) attempted to change the two parking spaces on the property from general to limited common elements owned by two of the three unit owners. The third unit owner objected, and the Court agreed holding that without the consent of all three unit owners, the parking spaces could not be changed to limited common elements. There, however, the condominium association had evidence that the parking spaces were always supposed to be for the use of only two of the three unit owners. The appellate court held that the condominium association could make a claim for reformation of the condominium declaration and bylaws based on a “mutual mistake” that the instruments were in error, and sent the case back to the trial court for handling that portion of the case.
In the 1981 case of Stuewe v. Lauletta, 93 Ill.App.3d 1029, 1030, 418 N.E.2d 138 (1st Dist. 1981), a developer, in advance of closing on a unit, realized that there were not two parking spaces to convey, even though the purchase agreement required two spaces be provided to the prospective owner. As a result, the developer removed shrubs from a portion of the outdoor parking area and created a second space to convey. The condominium declaration and bylaws were not amended, and the survey recorded with the declaration did not show a parking space where one was created. Those documents also provided that the unit owners had a perpetual and exclusive easement over the parking area(s). After the association was turned over to the unit owners, a different parking space at the rear of the building was offered to the purchasers, who refused. The First District Appellate Court sided in favor of the condominium association because it held that the developer, by creating this second parking space, had diminished the common elements in favor of one of the unit owners without the consent of all the unit owners. As such, the second parking space was deemed to be a common element and did not belong to the purchasers.
In 2021, the appellate court dealt with a unique situation regarding parking spaces in a condominium in the case of Sagewood Partners, LLC Series B v. S. Bay Partners LLC, 2021 IL App (1st) 200432-U. The Sagewood Partners case involved a six-unit condominium that had five parking spaces. A related entity to the developer owned two of the six units and both units had in their legal descriptions that they had the exclusive right to use the same parking space as a limited common element, but two different mortgage companies held mortgages on the units. After the unit owner defaulted on both mortgages, the lenders foreclosed and then sold the two units to different parties. Both parties claimed the right to use the one parking space. To correct the issue, the association had a meeting and amended the declaration to “assign” the parking space to one of the two owners. The trial court decided that the association had, in essence, properly “deeded” the parking space to one of the two unit owners. The appellate court ruled that the trial court erred in making its ruling and specifically found that the condo association lacked the authority to “deed” the parking space because the declaration designated the parking space as a limited common element. The case was remanded to the trial court to decide whether the condominium association could amend its declaration to assign the parking space or if one of the two parties had a claim to the parking space by adverse possession. The ultimate decision in that case will be interesting to monitor because the appellate court stopped short of ruling that the condominium association lacked the authority to assign the parking space. However, one takeaway for a condominium association is that the condominium instruments are not always artfully drafted by the developer and once the unit owners take control of the board, it is a worthwhile endeavor to have an attorney review them to see if there are any issues that need to be resolved at an early stage.
Use of the Parking Spaces in a Condominium or Community Association
There exists in many condominium bylaws, and condominium rules and regulations, a restriction on the use of the area surrounding a parking space by the unit owner. Many times, the unit owner will use that area as its own personal storage space. Or, in some instances, the unit owner will attempt to use the parking space to store broken down vehicles, recreational equipment, or other items that are specifically disallowed by the association’s rules. If this happens, the board should seek compliance with the terms of the HOA bylaws and rules, and if allowed by those instruments, levy a fine against the unit owner. If all else fails, litigation may be necessary to obtain compliance from the unit owner.
A case where litigation became necessary regarding the use of the area around a parking space is the case of 334 Barry In Town Homes, Inc. v. Farago, 205 Ill. App. 3d 846, 563 N.E.2d 856 (1st Dist. 1990). The Farago case involved a six-unit side-by-side condominium that also had an underground parking garage with exactly six spaces. The defendants’ space was at the far end of the parking structure that ended at a dead end. For at least 12 years, the defendants were parking an extra car adjacent to the spot that it owned that did not impact the other five unit owners’ access to their parking spaces. Even though the sales contract identified that the unit came with 2 parking spaces, the First District Appellate Court found that the area outside of the 1 parking space was a general common element and enjoined the use of the space by the unit owners. The unit owners tried to argue that the area around their parking space was a limited common element that belonged to them, but the Court disagreed finding that the language of the declaration and condominium bylaws was clear that it was a general common element and that could not change by the passage of time or the language of the unit owners’ purchase agreement.
The use of the area around the parking space for storage was also at issue in the case of Mission Hills Condo. M-4 Ass’n v. Penachio, 97 Ill. App. 3d 305, 422 N.E.2d 1125 (1st Dist. 1981). In the Penachio case, the unit owner decided to use a recess in the wall adjacent to the indoor parking space for storage and erected a storage cabinet in that location. There, the appellate court held that questions of fact existed about whether the unit owner needed to get approval from the condo association to use that area because the condominium instruments were not clear as to whether the use of that area around the parking space was a “division” of common elements that was not permitted under the condominium declaration. The Penachio case is a prime example of the importance of an association creating rules and regulations regarding the use of the parking area or garage because reliance on the language in the declaration or the bylaws may not be enough if a unit owner decides to use the parking spot, or the area around the parking spot, for a purpose other than parking a vehicle.
Use of the parking area can also be an issue in a HOA or common interest community associations. For example, in Forest Glen Cmty. Homeowners Ass’n v. Nolan, 104 Ill. App. 3d 108, 109, 432 N.E.2d 636, 637 (2d Dist. 1982), a restrictive covenant existed for the community that precluded recreational vehicles, boats, trailers, trucks, snowmobiles, and commercial vehicles from being stored “in the open” on any of the properties. The defendant was parking both snowmobiles and a boat on his property at various times throughout the year, and the association sought an injunction against the continued storage or parking of these vehicles. Relying in part on an Ohio decision that held that recreational vehicles that “are continually kept outside in a single family neighborhood” can “adversely affect its character and integrity,” the Appellate court held that the use by the homeowner violated the restriction on “storing” these items, while at the same time noting that the restrictions did not preclude “parking.” In the Nolan case, the court went on to say that the restriction applied to all activities other than loading and unloading in relation to the storage or parking of the boat and the snowmobiles and affirmed the granting of injunctive relief in favor of the association.
Handicap Parking Issues Under The Fair Housing Act
If the condominium or common interest community has a designated area for parking, the homeowners association should also be aware of an assertion by one or more of the unit owners that they should be entitled to a reasonable accommodation to utilize a specific parking space.
In Weiner v. Prairie Park Condo. Ass’n Inc., No. 16 C 1889, 2016 WL 3444210, at *1 (N.D. Ill. June 23, 2016), a unit owner brought Fair Housing Act and breach of contract claims against the condominium association. There, four parking spaces were designated for disabled persons but they were assigned to particular unit owners. In accordance with the condominium declaration, the plaintiff requested that one of the unit owners who was assigned one of these parking spaces switch with her. However, none of these other unit owners would voluntarily give up the space assigned and the condominium association’s attempts to intervene failed. Although the complaint as pled was dismissed, the Northern District of Illinois, citing to Jafri v. Chandler LLC, 970 F. Supp. 2d 852, 859-61 (N.D. Ill. 2013), found that the plaintiff would be able to assert a Fair Housing Act claim against the association because “a condominium must move beyond its existing handicap parking spaces if such spaces are unavailable for use by a handicapped resident.” As further explained by the court, “condominium owners are required to take additional action to ensure that handicapped residents who require a handicap parking space or other reasonable accommodation are, in fact, accommodated.” The court went even further and stated that a breach of contract claim could be asserted against the condominium association for not acting against the unit owners who refused to switch spaces with the plaintiff because the declaration specifically gave the board the authority to act against those unit owners to enforce the provisions of the declaration. This case stresses the importance of the board retaining counsel immediately if a request for an accommodation is made by a unit owner as well as the importance of the board taking immediate action if certain unit owners are refusing to abide by the terms of the condominium declaration and bylaws.
The importance of communication and handing of requests for an accommodation were brought to the forefront in the 2021 decision of Nawrocki v. Oak Brook Towers Condo. Ass’n., No. 20-CV-1517, 2021 WL 698485, at *3 (N.D. Ill. Feb. 23, 2021). In Nawrocki, a request for an accommodation was made to, but purportedly ignored by, the association. The unit owner then retained a disability advocacy organization who then engaged in another 6 months of correspondence without an agreement being reached. The Northern District of Illinois held that the advocacy organization had standing to assert a Fair Housing Act claim against the association for damages and that the complaint against the association brought by the unit owner withstood a motion to dismiss. There, the condominium association attempted to argue that the declaration and bylaws limited the association’s ability to grant a parking accommodation, but the Court held that, on a motion to dismiss, it could not rely on the language of those instruments. Therefore, even if the association were to be ultimately successful in the case, it would still have to spend significant attorneys’ fees defending against the claim.
Conclusion
Parking issues in a condominium or common interest community can create significant confusion for the board, especially if the declaration or the HOA bylaws are not clear. The issues can be heightened in urban areas where parking is at a premium or in the case of a new board taking over the control of the community association from a developer. If any issue or dispute arises, it is suggested that a HOA attorney be retained immediately to provide guidance to the board before a dispute elevates to litigation, especially if a request is made for an accommodation under the Fair Housing Act.
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