“Parking spaces are generally either “deeded” or “assigned.” If parking spaces are “assigned,” this generally means that the entire parking area is part of the common elements. In this situation, unit owners do not own their assigned space or have any exclusive rights to the space. Common elements are maintained by the association’s board, and thus the board has the power to actually assign common element parking spaces. If the parking space in question is considered a common element under the association’s declaration, the board may be able to assign the space to the elderly couple without the consent or even the cooperation of John Doe (the renter of the space). A word of caution: always be cognizant of the board’s fiduciary duty to the unit owners. See 765 ILCS 605/18.4; see also Salomon v. Astor Village Condominium Assn., 2001 WL 664404 (1st Dist. 2001) (unit owner stated a cause of action for breach of fiduciary duty when the board gave unit owner too narrow a parking space and failed to allocate parking spaces uniformly).
“If parking spaces are “deeded,” the spaces are either treated as a unit unto themselves or allocated to a particular unit as a limited common element. If the parking space in question is a unit (i.e., it has its own percentage interest—and a vote equal to that interest—in the composition of the association, is transferable by deed separate and apart from any other unit, and is issued its own real estate tax bill), the board has no power or ability to assign or allocate such parking spaces. Ownership is vested in the person or entity with record title to the space (via its own deed).
“If the parking space is treated as a limited common element, the space will be assigned to a unit in the declaration, as set forth in the plat, and will also be referenced in the deed to the unit. A limited common element is a common element that is designated for use by a certain unit owner or unit owners to the exclusion of other unit owners. Parking spaces that are limited common elements may generally only be assigned through a transfer of the unit (because the parking space is appurtenant to the unit per the declaration and deed) or through a transfer of the limited common element between or among unit owners. Thus, if the space is assigned to the foreclosed unit as a limited common element, and the bank has gone through the entire foreclosure process and received a sheriff’s deed, the bank would be the owner of that parking space. If the bank is the owner of the parking space, the board and association may be violating an assignment of rents in favor of the bank.
“Another consideration to address is whether one or both elderly persons are handicapped, which may raise other concerns. The bottom line is that you and your board should consult your governing documents and engage counsel to ensure the board acts in accordance with all applicable documents and governing law.”