The Journal of the
Virginia State Bar
Real Property Section
Stephen C. Gregory, Editor
Caitlin D. Cater, Co-Editor
http://www.vsb.org/site/sec tions/r e alpro pe rt y
the FEE SIMPLE
FAIR AND UNEQUAL: PARKING RIGHTS IN COMMON AREA
by Lori H. Schweller*
The board of directors of a condominium (or property owners’ association) has received
complaints about unauthorized cars creating space shortages in the community’s parking lot. The
board would like to designate specific parking spaces for use by assigned units so that each unit
has a certain number of parking spaces available to it at all times. May it do so? The answer
depends on (a) how parking spaces are classified in the development’s declaration of covenants,
conditions and restrictions; (b) the association’s authority to control common elements or common
area pursuant to the declaration and the Virginia Condominium Act or Property Owners’
Association Act, respectively; and (c) other relevant governmental regulations, such as proffers or
conditions relating to a planned unit development site plan.
THE CONDOMINIUM CONTEXT
A condominium is a legal property regime authorized by statute; in Virginia, the Virginia
Condominium Act is the operative section in Title 55 (Va. Code §§ 55-79.39 ff.). A condominium
is legally created by the recordation of a declaration with certain exhibits required by statute. The
plat(s) recorded with the declaration should depict those areas of the condominium land designated
“common elements” (defined in the Condominium Act as all portions of the condominium other
than the “units”). Each unit owner in the condominium receives, as appurtenant to his unit, an
interest in the common elements proportional to his “percentage interest,” which should be set out
in the declaration.
Certain portions of the common elements may be designated on the plat and plans or in the
declaration as “limited common elements,” which means they are reserved for the exclusive use
of one or more—but not all—of the units. Such limited common elements must be so designated
on the condominium plats and plans along with the identifying number(s) of the unit(s) to which
they are assigned (if assigned), unless such designation is unnecessary (e.g., shutters, window
boxes). Ideally, the public offering statement for a condominium under development will describe
in detail how parking areas will be treated.
THE PROPERTY OWNERS’ ASSOCIATION CONTEXT
Non-condominium developments governed by the Virginia Property Owners’ Association
Act (“POA Act”) (Va. Code §§ 55-508 ff.) will, by definition, include “common area” (which is,
in many regards, the functional equivalent of “common element” in the condominium context),
owned and governed by the development’s property owners’ association pursuant to a declaration
and other governing documents. A lot owner in a development does not own a percentage interest
in the common area, but rather, enjoys an easement over the common area along with all other
owners in the development.
HOW PARKING AREAS MAY BE DESIGNATED
IN THE GOVERNING DOCUMENTS
Parking areas may be shown and labeled on plats or plans as common elements or common
area available for use by all owners on a first-come, first-served basis. Alternatively, parking
spaces may be individually designated as limited common elements or limited common area
appurtenant to particular lots/units. For example, the declaration for a condominium might provide
that individual parking spaces will be designated and granted as limited common elements by the
Lori Schweller is a shareholder in the Charlottesville office of LeClairRyan. Lori’s practice
focuses on commercial real estate, assisting developers, businesses, and private landowners with
acquisitions, sales, financing and leasing, with land use and zoning, and with the development and
management of common interest communities.
*
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deeds conveying the units to purchasers, and that the condominium plat will be amended once all
parking spaces are assigned to identify which spaces are limited common elements assigned to
identified units.
One parking lot may contain both general common element and limited common element
parking spaces. To complicate matters further, the declaration may give the association the power
to grant the use of certain common elements/common area (that is not limited common
elements/area) to designated units—and to change such designations.
In the case of a condominium, if a common element is not initially designated as a limited
common element on the plat and plans recorded with the declaration (or in an amendment thereof),
it can be converted into a limited common element later only if the declaration includes a
“description or delineation of all common elements not within the boundaries of any convertible
lands which may subsequently be assigned as limited common elements, together with a statement
that (i) they may be so assigned and a description of the method whereby any such assignments
shall be made in accordance with the provisions of § 55-79.57, or (ii) once assigned, the conditions
under which they may be unassigned and converted to common elements in accordance with § 5579.57.” (Va. Code §. 55-79.54.) In short, you should be able to read the condominium instruments
to learn which portions of the common elements are, or might become, limited common elements.1
Less clear may be the association’s authority to grant special privileges with respect to
general common element parking. Sometimes, a declaration will refer to certain areas of the
common elements as “reserved common elements,” defined as areas that the property owners’
association has power to designate for the use of a certain class of owners or to specified owners;
for example, a parking lot in which the association may designate—and redesignate—parking
spaces for certain unit owners’ use. Classifying parking spaces as “reserved” instead of limited
common elements allows the association to reassign spaces as needed without amending the
declaration or plat and plans. This scheme is useful in, for example, a mixed-use condominium in
which residential unit owners have designated limited common element parking spaces but
commercial unit owners may not. The declarant might reserve to itself (and the association) the
authority to license spaces to commercial unit owners in conjunction with leases so that
commercial enterprises do not have to rely on available spaces for their customers. As the cases
below illustrate, a community’s governing documents must be very clear and specific about the
association’s right to designate such reserved common element spaces to some and not all owners.
It is important to remember that a declaration is a contract among the owners and the
association. It sets the terms for current and future assignment and use of common
elements/common area, consistent with the Condominium Act or the POA Act. Where the
declaration is silent, unclear or ambiguous, the provisions of the Condominium Act or the POA
Act will govern. The following three Virginia Supreme Court cases provide clarity as to the terms
1
The recent case of Commonwealth of Virginia, ex rel. Fair Housing Board v. Windsor Plaza
Condominium Association, Inc. et al., 2014 WL 7404049 (Va. 2014), illustrates the value of a limited
common element property right. Mr. Fishel, who is disabled, purchased a condominium unit with an
appurtenant limited common element parking space that was not one of the larger, more convenient spaces
marked as handicapped (the “HC Spaces”) on the condominium’s plat and plans. All parking spaces in the
condominium, including the HC Spaces, had been assigned to unit owners as limited common elements,
leaving no general common element parking. Mr. Fishel and the Commonwealth sued the association for
discrimination when it failed to provide Mr. Fishel with an HC space. The case addresses several interesting
Virginia Fair Housing Law issues, many of which the Court dispensed with on procedural technicalities, as
well as a valuable discussion of reasonable accommodation versus reasonable modification. The instructive
point here is the Court’s holding that “requesting, as an accommodation, the reassignment of limited
common element parking spaces belonging to private individuals is unreasonable because Windsor Plaza
has no authority to confiscate property belonging to one unit owner and to reassign that property to another”
(without the first owner’s consent).
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that must be present to permit parking space assignments, and as to what happens when
assignments are unauthorized.
VIRGINIA CASES DEALING WITH COMMON AREA PARKING
A series of Virginia Supreme Court cases spotlight how language drafted to explain these rights
can be ambiguous and can trip up owners’ associations attempting to exercise authority they may
not have. Each of these cases involves a townhome development with a common area parking lot,
governed by a property owners association and subject to the POA Act. In each case, the
association attempted to promulgate a rule that would reserve common area parking spaces to those
owners without garages in their townhome units. In all three cases, the Virginia Supreme Court
held in favor of the owners of townhomes with garages, who argued that their rights under the
declaration had been violated by the association; more specifically, that the association breached
the contract between the association and the homeowner-plaintiffs by unlawfully taking common
area parking rights.
THE SULLY STATION CASE
In Sully Station II Community Association, Inc. v. Dye et al., 259 Va. 282 (2000), the
owners’ association for a townhouse community appealed a Fairfax County Circuit Court decision
in favor of the plaintiff unit owners. The plaintiffs, all of whom owned units with attached garages,
complained that the association violated the terms of the declaration when it adopted a policy that
assigned two common area parking spaces to each townhome without a garage. Previously, all 94
common area spaces were available to all townhome owners and guests on a first-come, firstserved basis. After the association’s action, 78 parking spaces were reserved for the “non-garaged”
townhomes, leaving only 16 unassigned spaces for use on a first-come, first-served basis by all
townhome owners and guests.
The declaration for the community specifically provided that the association had the right
to license portions of the common area to members “on a uniform, non-preferential basis,” but it
did not similarly qualify the association’s right to establish rules and regulations to govern
common area. Therefore, the question for the court was whether the association’s action gave a
license to the non-garaged townhome owners or constituted a rule or regulation governing use of
the common area. (A license is a privilege to use land without any ownership interest or estate in
the land.) The Fairfax County Circuit Court had found that the association’s policy effectively
granted licenses to common area parking spaces on an unequal basis, which the declaration did
not permit.
The association argued that its new policy was a rule, not a grant of licenses. It cited several
specific provisions in the governing documents that authorized the association to promulgate rules
to regulate the use of common area parking areas, including assigning parking spaces. The
association argued that its parking policy could not be characterized as a license because its
regulation of the use of space did not grant rights of use where none had previously existed—all
owners had the right to park in the common area parking spaces prior to the new policy. Rather,
its rule regulated such existing right.
The Court, however, rejected the test proposed by the association. It found that the right
the association gave to each non-garaged owner must be a license because, the Court explained,
without the association’s grant of the exclusive right to use the parking spaces, the non-garaged
owner would not have had the legal right to exclude the garaged owners from the assigned spaces.
That is, the right given was an exclusive property right—the right of non-garaged unit owners to
exclude garaged unit owners from common area parking spaces—which is, according to the Court,
“the very essence of a license.” Because the parking policy affected the creation of licenses given
non-uniformly on a preferential basis, such grants were outside the association’s power. With two
justices dissenting, the Court upheld the circuit court’s ruling for the homeowners.
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THE WHITE V. BOUNDARY CASE
The Virginia Supreme Court revisited the license rule distinction in White v. Boundary
Association, Inc., 271 Va. 50 (2006). The Whites owned a townhome in a nine-unit townhome
development. The development’s declaration granted every owner “a right and easement of
enjoyment to the Common Area,” subject only to three specific rights reserved to the association:
the right to charge fees for recreational facilities, the right to suspend voting rights for unpaid
assessments, and the right to dedicate property to public authorities. The board of directors adopted
parking regulations that designated two parking spaces to each unit. Because the common area
contained eighteen parking spaces, all spaces were thereby dedicated. A few months later, the
board adopted another set of regulations that gave unit owners the right to have cars towed from
their assigned spaces if parked without their permission.
The Whites sought a declaratory judgment that the regulations were void and
unenforceable because they violated the declaration and the POA Act, but the Circuit Court of the
City of Williamsburg and James City County determined that the association was authorized to
promulgate rules governing the common area and that the rules were properly adopted.
The Whites appealed, arguing that the adopted rules exceeded the association’s authority
under the POA Act, which permits adoption of rules and regulations except when those rules and
regulations conflict with rights reserved to the owners by their declaration. They cited Va. Code
§ 55-513(A), which states, in part, that “the board of directors shall have the power to establish,
adopt, and enforce rules and regulations with respect to use of the common areas and with respect
to such other areas of responsibility assigned to the association by the declaration, except where
expressly reserved by the declaration to the members.” The association argued in response that the
declaration and bylaws did not limit its power regarding management of the association so that it
had the authority to establish rules regarding the common area.
The Court observed that an association’s power to promulgate rules and regulations
pursuant to authority granted under its declaration and bylaws is subject to the declaration’s
reservation of rights to the association members and that a declaration is a contract, which should
be taken at face value when its language is “plain and unambiguous, as it is in the present
Declaration.” In this case, the declaration clearly stated that the easement to each owner for use of
common area was subject only to three specific rights reserved to the association; the Court found
that the parking regulations were invalid because they had the effect of “divest(ing) the unit owners
of a property right granted in the Declaration that ‘runs with and binds the land.’” Consistent with
its decision in Sully Station, the Supreme Court again concluded that the parking policy at issue
conferred a license on unit owners in violation of the declaration’s express reservation to all unit
owners of the right of enjoyment to the common area, except as to the three specific rights reserved
to the association.
THE MANCHESTER OAKS CASE
In 2012, the Virginia Supreme Court again considered some of these questions in
Manchester Oaks Homeowners Assoc., Inc. v. Batt et al., 284 Va. 409 (2012). This time, the Court
had to consider, among other questions, not only whether the property owners’ association violated
its declaration when it assigned parking spaces on an unequal basis, but also whether the
association validly amended its declaration to give itself the power to do so and whether the lower
court, which ruled for the homeowners, correctly awarded legal fees and costs to the homeowners.
(The question of legal fees and costs is beyond the scope of this article, and is omitted.)
The facts are familiar: A townhome development subject to the POA Act includes
townhomes with garages, townhomes without garages, and a common area parking lot. In this
case, the declaration reserved to the association not only the general right to establish rules
governing the common areas but also the specific right “to designate a maximum of two parking
spaces within the Common Area for the exclusive use of the Owner of each Lot…”
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The association adopted a policy restricting the use of certain parking spaces to those who
obtained visitor parking permits. The plaintiffs filed a complaint for declaratory judgment and the
association abandoned the policy, restoring first-come, first-served status to the common area
parking.
Next, the association adopted an amendment to its declaration to create the category of
“Reserved Common Area,” over which the association’s board of directors had the express power
to grant licenses to parking spaces “on a non-uniform and preferential basis.”
The plaintiffs argued that the unequal treatment that would result from the association
exercising its rights to license spaces to non-garaged lots violated the declaration and that the board
members of the association breached their fiduciary duties. After the association answered that the
plaintiffs’ claims were barred by the amendment to the declaration, the plaintiffs argued that the
amendment was invalid because it had been improperly adopted.
The Circuit Court of Fairfax County found six problems with the association’s adoption of
the amendment to the declaration, four of which were purely procedural, and so found the
amendment invalid. With the amendment out of the way, the court held that the reservation of
parking spaces for some but not all members under the declaration was discriminatory in violation
of the declaration because all lot owners have an equal right to use the common areas.
On appeal to the Virginia Supreme Court, the association argued that, unlike the declaration
at issue in Sully Station, discussed above, nothing in the language of the declaration for Manchester
Oaks required it to assign parking spaces equally among units. The declaration stated that the
association had the right to designate a maximum of two parking spaces to each lot, with no express
obligation to grant the spaces uniformly. It argued further that the “maximum of two” language
would be meaningless if equal assignment were required because there were not enough spaces to
assign two to every lot.
The Supreme Court disagreed with the association’s arguments, explaining that the
language in the declaration giving the association authority to grant lot owners the right to two
spaces did not give it the right to treat owners unequally, stating, “equality is inherent in the
definition of common area.” The association could grant every lot one space or no space or could
annex additional land to create more spaces. The Court held that the association “must assign
parking spaces in the common area to all lot owners equally, if at all, unless the Declaration
expressly provides otherwise. Nothing in the original Declaration does so, including its definition
of ‘Common Area.’ Consequently Sully Station controls the outcome on this issue.”
It is important to recognize that the Court based its holding on the terms of the original
declaration. It then went on to affirm the holding of the lower court that the amendment was invalid
because of improper notice. (The association contested three of the six grounds on which the
Circuit Court found the amendment invalid; as any one of the grounds would be sufficient to affirm
the lower court’s decision, the Court upheld the finding of invalidity by analyzing the most
straightforward of the procedural bases.) The Court delivered no opinion on whether the
amendment that the association attempted to adopt would have been a sufficient basis for the
association to grant licenses to owners on an unequal basis. Had the amendment been duly adopted,
its explicit language giving the association’s board of directors the power to grant non-uniform
licenses in the common area—including, specifically, the right to designate parking spaces on a
preferential basis for the exclusive use of owners of non-garaged lots—should have been adequate
basis for the grant of non-uniform licenses in common area parking spaces.
ZONING
Finally, we must keep in mind that a community’s parking regime may be directly
controlled by conditions or proffers associated with a plan of development or site plan. The
declarant may have coordinated the community’s governing documents with promises made to the
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locality’s planning authorities as conditions to zoning approvals to ensure that the project supplies
sufficient off-street parking to its residents and manages the parking according to specified
guidelines.
Practice pointers we can learn from these cases:
1. Because a policy for using common area seems fair to an owners association does not
necessarily mean that it is fair, or even legal.2 Careful review of the POA Act or
Condominium Act, as applicable, along with the development’s governing documents
is required to determine the owners’ use rights and the association’s authority with
respect to granting use rights to common area.
2. Governing documents should be drafted to define clearly the common areas and limited
common areas, and whether and how common areas may be designated for the
exclusive use of certain owners. If the declarant intends for the association to have the
authority to grant use rights in parking spaces non-uniformly, the governing documents
should expressly state this intention. Absent such explicit non-uniformity language, we
can expect a court to rule that every owner should have equal use rights in the common
area.
3. Rules cannot be used to do what is otherwise not authorized by the declaration and
bylaws. A rule that would have the effect of divesting owners of rights (such as rights
to the use of common area) that are granted or reserved to the owners in the declaration
cannot be validly adopted pursuant to powers granted to the board in the bylaws.
4. Be familiar with any applicable land use approval conditions or proffers associated with
the development before enacting rules or amending governing document provisions
affecting common area parking.
It is the opinion of the author that a developer or association can legally establish reserved
common area and unequal, preferential treatment of common area as long as the declaration for
the community expressly provides for such treatment and unequivocally gives the declarant and/or
association the authority to grant such non-uniform licenses in the community’s common area.
2
The impetus for associations to adopt unlawful rules giving non-garaged townhomes parking
space licenses in the common element is that, presumably, the owners of non-garaged townhomes need
parking spaces more than garage townhome owners. However, as the Court points out, a purchaser may
choose a non-garaged townhome because it has an additional room instead of a garage, or because it is less
expensive, while garaged and non-garaged owners alike have parking needs not only for their own cars but
also for guests and other visitors; thus, it is unfair to treat the non-garaged townhome owners preferentially
as to common area parking after they chose to purchase non-garaged townhomes. Fairness aside, as the
Court emphasized, “equality is inherent in the definition of common area.”
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