Q. Three years ago a couple bought a condo in our building “as is,” and with only one assigned parking spot. Since that time, they have been trying to get a second parking spot since everyone else in the building has two assigned parking spots. With limited parking there isn’t room to create a new additional parking spot.
Three months ago the couple told our maintenance person that if all else fails, they would get a handicap sticker and have a spot for their new second car. After legal action and going through mediation, the matter remains open as their lawyer has indicated he would proceed no further with any action unless they gave him more money and thus things are on hold.
The couple now have recently obtained a handicap sticker and are now parking the second vehicle in the handicap spot. They live here only part-time and the board doesn’t know what to do.
When I asked them how long they were going to be parking in the handicap spot they said that I cannot ask any questions about their handicap or their use of the spot, or the board would be sued. How do we resolve this game playing? Can an owner with one assigned parking spot use a handicap spot or a guest spot for a full-time second vehicle ?
A. “The question provided is missing several facts, which makes answering this question somewhat challenging,” says attorney Leonard Wilder of the firm Bakalar & Associates, P.A., in Coral Springs. “As such, I am going to make some presumptions.
“I presume this is a condominium association governed under Chapter 718. Second, I presume, like many condominiums, that each unit comes with the exclusive right to use one parking space which would be deemed a limited common element. This means that though the space is a common element, the use of same is reserved exclusively for a particular unit to the exclusion of others. I am also presuming that any “excess spaces” were initially unassigned and meant to be used for guests or other owners on a first-come, first-serve basis.
“Somewhere down the line, the board of directors has taken it upon themselves to give to each unit owner the exclusive right to use another parking space to presumably accommodate those owners who have second cars. It is highly questionable if the board of directors would have such authority to turn common element parking spaces to limited common elements. I suspect that right does not exist in the governing documents and thus could be a violation of the Condominium Act. To add insult to injury, all the unit owners have two assigned spaces except one owner, who has been told there is no room to park another car as the remaining space is a handicap space. As such, we have the potential selective enforcement of a parking program, which may not even be legal.
“Turning my question to the handicap space: With limited exception, condominiums are not governed by the Americans With Disabilities Act (ADA) but would be governed by the Fair Housing Act, which requires the association to make reasonable accommodations in its rules, policies, etc., to allow a disabled owner or resident the equal right to enjoy the use of their home. In this instance, based on the facts provided, it is my belief that if a unit owner has been lawfully issued a handicap parking decal by the state, that the association has no right to question same. Along those lines, the unit owner in question would lawfully be allowed to use the handicap space for his/her second car if there is a handicap placard or license plate displayed.
“Please note that my answer on this would likely be different if unit owners were not given the right to have a second assigned space under a program or rule, which I suspect is contrary to the governing documents. However, returning to the original parking scheme would require some tough decisions and potential legal conflict, which the board may not wish to visit.”