Limited-common-element parking

What actually makes a space a limited common element

The label does not come from paint on the pavement, a number stenciled on a curb, or how long an owner has parked there. It comes from one thing: whether the recorded declaration itself sets that space aside for one unit's exclusive use.

"'Limited common element' means a portion of the common elements allocated by the declaration or by operation of subdivision 2-102(2) or (4) for the exclusive use of one or more but fewer than all of the units."

Source: Vermont Statutes Title 27A §1-103, State of Vermont

This is a widely-adopted model, and Virginia's condominium statute defines a limited common element in essentially the same declaration-based way. The exact statutory wording differs by state, so check your own state's condominium or planned-community act, not this one.

Why "assigned parking" and true limited-common-element parking are not the same

Florida's own condominium statute never uses the word "parking" as an example of a common element reserved for exclusive use.

"'Limited common elements' means those common elements which are reserved for the use of a certain unit or units to the exclusion of all other units, as specified in the declaration."

Source: Florida Statutes §718.103, The Florida Senate

Practitioners routinely call an assigned space a limited common element as a matter of custom, not because a statute says so. That custom hides a real gap. A space named as exclusive-use in the recorded declaration is a limited common element. A space merely handed out by a board rule or a manager's letter, without being recorded that way, generally stays part of the general common elements, and it is typically revocable and reassignable at the board's discretion. Same parking spot, two very different levels of security.

How courts review the two differently

A restriction written directly into the recorded declaration and a rule the board adopted on its own get reviewed under different standards. The leading case on recorded restrictions holds:

"An equitable servitude will be enforced unless it violates public policy; it bears no rational relationship to the protection, preservation, operation or purpose of the affected land; or it otherwise imposes burdens on the affected land that are so disproportionate to the restriction's beneficial effects that the restriction should not be enforced."

Source: Nahrstedt v. Lakeside Village Condominium Assn., Supreme Court of California

A separate line of cases gives deference to a board's own discretionary rule, but only when it stays inside the authority the declaration actually granted:

"Where a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development's common areas, courts should defer to the board's authority and presumed expertise."

Source: Lamden v. La Jolla Shores Clubdominium Homeowners Assn., Supreme Court of California

Both of these are California Supreme Court decisions. Other states cite them as persuasive reasoning, but confirm your own state's standard for reviewing a recorded restriction versus a board rule.