Question: When a buyer purchases a condominium unit and the unit purchased includes a designated parking space, how does that that buyer take title to the parking space? Does the buyer own the parking space, or does the association? If the association owns the parking space, can the unit owner sell the space to someone else? If the unit owner does not own the space, can the association take it away from him/her?
The answer to that question depends, and it is usually a legal question. Most often, common elements such as parking spaces, garages, and boat slips in condominium developments belong to the condo association and are assigned to specific units. The manner in which these common elements are assigned, titled and transferred is governed by the declarations of the condominium association. Traditionally, the condo association will grant a license for use of a parking space, garage or boat slip to a specific unit, and that license will follow the unit when the unit is sold. Sometimes, however, the slip or garage automatically transfers back to the association upon sale of the unit to which it was assigned. As such, a seller needs to confirm his or her rights to any assigned common element before signing a contract which promises to transfer that boat slip or garage with the condo unit.
Another scenario, what if a unit owner decides she no longer needs the boat slip assigned to her unit. Can she sell or transfer the license to another unit owner or a third party? Most likely, the condominium declarations restrict or prohibit such a transfer, or give the association right of first refusal.
Even more worrisome, the association can most likely revoke a license at will at any time. A recent decision from Florida’s Third District Court of Appeals states that a license to use a parking space is revocable at will. This decision differentiated an easement from a license. The condominium association provided the unit owner a “Parking Space License,” charging $5,000.00 for the space. Ten years later, the Association sought to revoke the license. The appellate court found that, “[u]nlike a lease or an easement, a license is not an interest in real property; it merely gives one the authority to do a particular act on another’s land.” Therefore, the association was authorized to revoke the license in its discretion.
Most people who buy a condo that includes the right to use a parking space, garage or boat slip probably do not realize that the association can revoke the license at any time. In fact, often times buyers will offer to pay more for a unit that includes a license over a unit that does not. A buyer may reconsider increasing his offer if he finds out the association can revoke the license the day after purchase.
Therefore, be cautious of a buyer’s expectation regarding assigned parking spaces, garages, boat slips and other common elements in a condominium development. The Condominium Rider (A) to the Far/Bar residential contract states that the property includes the seller’s “right and interest in or to the use” of the designated common element(s). It does not state the exact type of interest the buyer is taking. Therefore, be very cautious to not indicate that the buyer will own the parking space at closing, as that is most likely not the case.
This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.
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