Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, civil litigation, estate planning and commercial transactions.
Q: Our condominium association’s board of directors is wondering if our condominium association is required to allocate parking spaces for “handicap” persons. What does the condominium rules require relating to a condominium association’s duty to provide handicap parking spaces?
A.S., Boca Raton
A: The scope of a unit owner’s title to a condominium unit includes the real and personal property located within the parameters of his or her unit, the defined appurtenances to his or her unit and his or her proportionate share of the condominium common elements. In order to precisely determine the nature and extent of those components of unit ownership, the starting point is to read the declaration of condominium (“declaration”), which typically and customarily describes the boundaries of each unit, the appurtenances to each unit and the percentage share of the unit owner’s interest in the common elements. Such ownership rights are inseparable from the ownership of the subject unit. Such rights may include the unit owner’s right to exclusively use and occupy “limited common elements.” “Limited common elements” mean property reserved exclusively for the use of certain unit owners to the exclusion of all others.
As to the subject matter of your question, a declaration may define the scope of ownership of a condominium unit to include a parking space either as a part of or as appurtenant to the unit, or more commonly, as a limited common element reserved exclusively for use of the unit owner to whom it is assigned. Conversely, the declaration may also define parking spaces as part of the common elements available for use of all unit owners. Although a condominium association is limited in its right to grant any one unit owner or a class of unit owners the right to exclusively occupy common area, in June by the Sea North Condominium Association (The Towers), Inc. v. Manfredonia, 397 So.2d 297 (Fla. 4th DCA 1981), the Florida appellate court found that the condominium association had the right to pass a board made rule which allocated common area parking spaces to specific unit owners who had not previously purchased the limited number of parking spaces which were designated as a limited common elements. Thus, the authority and duty, if any, of your condominium association to assign parking spaces to persons with a handicap will necessary depend on what your declaration states as to parking spaces.
Unlike places of public accommodation (i.e. hotels, and restaurants) or government facilities (i.e. federal or state official buildings) which are required to set aside handicap parking spaces, there is no comparable federal or Florida state law which requires a privately owned community, such as a condominium, to pre-mark and allocate a specific number of parking spots for handicap persons, The reason is because places of public accommodation are subject to the American with Disabilities Act (“ADA”). Condominium associations do not qualify as places of public accommodation, and therefore are not subject to the requirements of the ADA. However, condominium associations are subject to the Fair Housing Act (“FHA”), which prohibits discrimination in the providing and use of housing based, in part, on an occupant’s disability.
A disabled person may claim the protections of the FHA by establishing that he or she has a “disability” and, that as a result of that disability, he or she has a need for the condominium association to provide a reasonable accommodation, so that the disabled resident will have an equal opportunity to enjoy and use the unit. What amounts to a qualifying “disability,’ under the FHA is defined therein, and may be determined based on the physical manifestations of the residents condition, such as a resident who is blind, or through a letter from a qualified health care professional, such as where the disability relates to a mental health matter.
If such a request is made by a qualifying disabled resident , then the condominium association is required to review the request and provide a reasonable accommodation if, based on the declaration, it is within its power to do so. Whether the providing of a request for a reasonable accommodation in the context of assignment of a parking space is within the power of a condominium association will depend on how parking spaces are defined and assigned to the unit owners.
In other words, if the request for a reasonable accommodation relates to assignment of a preferred parking space, the association has the following obligations: (a) if all of the parking spaces are limited common elements and/or have been specifically conveyed in the declaration to the unit owners, then the association does not have the obligation to and cannot take away those parking spaces. However, the association can still attempt to ask whether a resident with such a parking space will trade such a parking space with a disabled resident; (b) if the parking spaces are common elements, but have been assigned by the board, the association probably must accommodate the disabled resident by providing a parking space closer to the resident’s unit or one large enough to allow parking a specially equipped vehicle, or access by a wheelchair. The difficulty in this category of parking space is persuading a unit owner to whom the association has already assigned a parking space to switch his or her space with the disabled resident. In this circumstance, although a unit owner may have the right to a parking space, that does not mean that he or she had a corresponding right to a specific parking space; and (c) if the common area parking spaces are unassigned and used on a first to park basis, the association must accommodate the request of the disabled resident.
Please be mindful the FHA applies both to owners and there authorized tenants. If your association does not have rules in place to address this issue, it may be wise for your board to consider doing so.
Ronald E. D’Anna, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross. Ask questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.