Good morning Mr. Richardson,

I discovered a problem with my deeded garage. Long story short my deed does not reflect the garage I was given. I have been fighting to retrieve what I paid for at the beginning. After a unit above my current located garage sold, I lost all power to the garage. HOA was contacted and they discovered the problem. Shouldn’t somebody have caught this issue before the sale? There is a whole mess here and all we want is what we paid for at the beginning. I look forward to your reply.

Thank you,

T.M., Brea

Dear T.M.,

The first question is, do you own the garage or is it common area owned by all? Normally this is established when the condominium project is created. Sometimes, parking spaces or garages are designated by the Condominium Plan, an underappreciated but important document. Sometimes garages are designated by the Condominium Plan as part of the unit or described as exclusive use common area. CC&R’s unfortunately rarely include a parking list specifying which spaces are assigned to which units. If the Condominium Plan did not create a legal interest in the garage, the seller may have “sold” something which the seller never owned in the first place.

Another problem arising from the lack of specificity regarding parking is that owners over the years will trade spaces or cede parking rights to another owner – without any documentation as to how this was done. The problem often surfaces when an association member claims they “acquired” a parking space from another owner, despite the fact that parking spaces are common area if they are not part of the unit. This is why, when redrafting CC&Rs, I often suggest the association designate which spaces goes with which unit and attach that list to the document as an exhibit. That helps avoid future confusion and provides an undebatable reference as to which space is assigned to which residence. About once a year, someone comes to me with a real estate contract showing the seller purporting to sell a parking space along with the unit, despite the fact there is no documentation showing the seller ever had ownership of the space. Chances are, that space in the shared garage or parking lot is common area, and everybody owns it in common.

Condominium buyers are often unaware of very important information which is at their fingertips, since much important information can be found in the CC&R’s and Condominium Plan. This may include how garages are defined and if parking spaces are assigned. Do not rely on the seller’s statements but review the governing documents.

Even individual garages can be confusing. If the garage is defined as part of the unit, normally the definition in the Condominium Plan will say that the airspace within the garage is part of the unit. So, the walls, floors and ceilings may be the same as within the residential portion of the unit – common area. This means the HOA normally must be asked before making any modifications to the garage.

T.M., unfortunately, you may need to consult with a real estate attorney in your area to discuss if your seller is at fault and whether the HOA can reassign parking and take away your space.

Sincerely,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Principal of Richardson|Ober PC.

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