The enforcement of parking restrictions is one of the most common problems that condominium associations and property managers are forced to deal with. Parking spaces are often at a premium in densely packed urban areas and issues arise when co-owners fail to park in their designated areas. In contrast, suburban site condominiums with single-family homes often face issues related to parking boats, commercial vehicles or inoperable vehicles in driveways or on the street. Given the vast array of potential parking issues that can arise in a condominium, condominium associations and property managers need to be prepared to appropriately deal with violations of parking restrictions. This article will discuss common issues that should be addressed in the condominium bylaws or rules that relate to parking, potential remedies that are available when parking restrictions or rules are violated and potential exceptions to the enforcement of parking restrictions or rules.
Common Issues That Should be Covered by Parking Restrictions or Rules
When a condominium is developed, the developer will typically designate parking areas as either general common elements or limited common elements. An area where any of the co-owners can park will typically be designated as a general common element. See MCL 559.106(5) (“General common elements” means the common elements other than the limited common elements.”). In contrast, an area where only certain co-owners can park or that is specifically designated as a parking space for a unit is typically a limited common element. See MCL 559.107(2) (“Limited common elements” means a portion of the common elements reserved in the master deed for the exclusive use of less than all of the co-owners.”). Finally, it is also possible that parking areas exist in units, which are commonly a garage or a driveway in a site condominium.
In reviewing the condominium bylaws, condominium boards and property managers should ensure that the condominium association has the authority to regulate the various parking areas, whether they are located on general common elements, limited common elements or actually located within a unit. While the Michigan Condominium Act does not have any specific provisions that regulate parking, MCL 559.156(a) states that the condominium bylaws may contain provisions that “are deemed appropriate for the administration of the condominium project not inconsistent with this act or any other applicable laws.” However, any condominium bylaws that are related to parking must be reasonable. Slatterly v Madiol, 257 Mich App 242, 256; 668 NW2d 154, 163 (2003) (“Bylaws must be reasonable in themselves as well as in their practical application.”). Finally, most condominium bylaws allow for the condominium board to adopt reasonable rules and regulations that govern the use of the common elements, which would also include adopting parking rules. Meadow Bridge Condo Ass’n v Bosca, 187 Mich App 280, 282; 466 NW2d 303, 304 (1990) (“…the board has the authority to promulgate reasonable rules and regulations.”). Accordingly, prior to taking any action with respect to enforcing parking restrictions, condominium boards and property managers should determine whether the condominium bylaws and/or rules adequately address current parking problems or whether amendments to the governing documents are necessary. Common issues that should be addressed in the condominium bylaws or parking rules are as follows:
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- Are the designated parking areas for co-owners, guests and vendors adequately defined?
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- Are parking spaces assigned to specific units? If not, is parking on a first-come first-serve basis?
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- Can commercial vehicles, boat trailers, buses, watercraft, boats, motor homes, camping vehicles/trailers, snowmobiles, snowmobile trailers, recreational vehicles, non-motorized vehicles, off-road vehicles, all-terrain vehicles be parked or stored anywhere in the condominium?
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- Are there restrictions on the number of vehicles that a co-owner is allowed to have?
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- Are there any time limits imposed with respect to parking vehicles in certain areas?
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- Is the term “commercial vehicle” adequately defined in the condominium bylaws or rules?
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- Are nonoperational vehicles allowed to be stored anywhere in the condominium?
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- Do the restrictions and rules governing parking comply with the Fair Housing Accessibility Guidelines and supplement developed by the Department of Housing and Urban Development (“HUD”) with respect to designating handicapped parking?
How Can Parking Restrictions and Rules be Enforced?
In addition to ensuring that the condominium bylaws or rules address common parking problems, condominium boards should also ensure that adequate enforcement mechanisms are in place. Generally speaking, the following options may be available to condominium associations to enforce parking restrictions or rules:
Fines. MCL 559.206(c) states that the condominium documents may allow for the levying of fines against co-owners after notice and hearing thereon. Accordingly, most condominium associations have the authority to fine co-owners that violate parking restrictions or rules. Most fine policies typically require an initial warning and contain a graduated fine scale for each occurrence thereafter.
Towing. Most condominium bylaws or parking rules allow for a condominium association to sticker and tow an improperly parked vehicle. The condominium bylaws or rules that relate to towing should allow for the condominium association to assess the costs associated with towing to the co-owner. However, in order to exercise this remedy, a condominium association should be careful to comply with MCL 257.252k of the Michigan Motor Vehicle Code. MCL 257.252k requires the following notice to be provided when towing a vehicle from private property:
(a) The notice shall be prominently displayed at each point of entry for vehicular access to the real property. If the real property lacks curbs or access barriers, not less than 1 notice shall be posted for each 100 feet of road frontage.
(b) The notice clearly indicates in letters not less than 2 inches high on a contrasting background that unauthorized vehicles will be towed away at the owner’s expense.
(c) The notice provides the name and telephone number of the towing service responsible for towing or removing vehicles from that property.
(d) The notice is permanently installed with the bottom of the notice located not less than 4 feet from the ground and is continuously maintained on the property for not less than 24 hours before a vehicle is towed or removed.
In situations that do not involve private property, i.e. being illegally parked on a public road, it is recommended that the condominium association contact the local police department to issue a ticket and/or tow the vehicle.
Injunctive Relief. MCL 559.206(a) allows for a condominium association to file an action for injunctive relief to enforce the condominium documents. MCL 559.206(b) and the condominium bylaws typically allow for a condominium association to recover attorney’s fees and costs if it is successful in a proceeding to enforce the condominium documents. Accordingly, in situations where fining or towing is not an available or an effective option, a condominium association may obtain a court order requiring compliance with the parking restrictions or rules. In the event that a co-owner continues to violate the parking restrictions or rules, that co-owner risks being held in contempt of court.
Federal Fair Housing Act Exceptions to Parking Restrictions and Rules
The Federal Fair Housing Act may operate as an exception to the enforcement of parking restrictions and rules in certain circumstances. Specifically, 42 U.S.C. § 3604 prohibits discrimination based on disability. 42 U.S.C. § 3604(f)(3)(B) defines discrimination as a “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling….”
In interpreting the Federal Fair Housing Act, the Eastern District of Michigan has held that:
An FHA reasonable-accommodation plaintiff must establish that the proposed modification is both reasonable and necessary. Hollis v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531, 540–41 (6th Cir.2014). “[T]he crux of a reasonable-accommodation … claim typically will be the question of reasonableness.” Id. at 541. An accommodation is reasonable when it imposes “no fundamental alteration in the nature of a program” or “undue financial and administrative burdens.” Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781, 795 (6th Cir.1996). An accommodation is necessary if, “but for the requested accommodation, [the plaintiff] ‘likely will be denied an equal opportunity to enjoy the housing of [his or her] choice.’ ” Hollis, 760 F.3d at 541 (quoting Smith & Lee Assocs., 102 F.3d at 794–95).
In addition to establishing reasonableness and necessity, the plaintiff must also prove “that she suffers from a disability, that she requested an accommodation … that the defendant housing provider refused to make the accommodation … and that the defendant knew or should have known of the disability at the time of the refusal.” Hollis, 760 F.3d at 540.
Forest City Residential Mgt, Inc ex rel Plymouth Square Ltd Dividend House Ass’n v Beasley, 71 F Supp 3d 715, 728 (ED Mich 2014).
Depending on the facts and circumstances, a disabled co-owner may be able to request a reasonable accommodation related to parking that would allow for them to deviate from the normal parking restrictions or rules. When a condominium association board receives a request for a reasonable accommodation, it should act on it promptly as some courts have held that a long delay in responding to a request for an accommodation will constitute an unlawful denial. See Astralis Condominium Ass’n. v. Secretary, U.S. Department of Housing and Urban Development, 620 F.3d 62, 68–69 (1st Cir.2010) (a condominium association’s year-long delay in granting a request for handicapped parking spaces constituted a denial of the request).
Similarly, what is reasonable under the circumstances will be determined on a case-by-case basis. In a recent opinion by the Northern District of Illinois, the court held that:
….a condominium must move beyond its existing handicap parking spaces if such spaces are unavailable for use by a handicapped resident. Jafri v. Chandler LLC, 970 F. Supp. 2d 852, 859-61 (N.D. Ill. 2013) (Feinerman, J.). In other words, condominium owners are required to take additional action to ensure that handicapped residents who require a handicap parking space or other reasonable accommodation are, in fact, accommodated. This conclusion is not contrary to the law as the Court sees it or as explained in the Department of Housing and Urban Development’s guidelines for accessibility under the FHA. See 56 Fed. Reg. 9472, 9486 (Mar. 6, 1991) (describing a potential approach for ensuring the availability of handicap parking for those who need it).
Weiner v Prairie Park Condo Assn Inc, Docket No. 16 C 1889, 2016 WL 3444210, at *5 (ND Ill June 23, 2016).
Accordingly, when there are not enough designated handicapped parking spaces to accommodate the co-owners, the condominium association may be required to designate additional parking spaces.
However, this does not necessarily require the condominium association to designate parking spaces for the exclusive use of a handicapped co-owner. A judge in the Northern District of Ohio held that a condominium association did not violate the Federal Fair Housing Act when it did not agree to designate a handicapped parking space for the exclusive use of a co-owner. Specifically, the court held that:
…the defendant Association holds no interest in the property Plaintiff would have it allocate. Accordingly, the Association (and its board) cannot be held liable for declining to do what it could not do: grant Woodruff the exclusive use of a parking space owned jointly by all unit owners.
US on Behalf of Woodruff v Fairways Villas Condo Ass’n, 879 F Supp 798, 802 (ND Ohio 1995), vacated sub nom. United States v Fairways Villas Condo Ass’n, 920 F Supp 115 (ND Ohio 1996).
Accordingly, given the wide range of possible outcomes in a claim related to a parking accommodation under the Federal Fair Housing Act, condominium boards should consult with counsel regarding the particular facts of the case to determine whether a reasonable accommodation should be granted and the scope of the accommodation.
Conclusion
Parking vehicles in a condominium will inevitably cause some form of a problem in virtually every type of condominium. Condominium associations should carefully review the condominium bylaws and rules to determine if the current governing documents adequately spell out the rules relating to parking or if amendments to the governing documents are necessary to deal with current parking problems. Similarly, the enforcement mechanisms related to parking should be reviewed to ensure that mechanisms related to fining, towing or injunctive relief, as well as the recovery of attorney’s fees and costs, are contained in the condominium documents. Finally, the board should treat requests for reasonable accommodations on a case-by-case basis and consult with counsel when necessary.
Kevin Hirzel is the Managing Member of Hirzel Law, PLC. He concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. He has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2018, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel was named an Up & Coming Lawyer by Michigan Lawyer’s Weekly in 2015, an award given to only 30 attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 480-8758 or kevin@hirzellaw.com.
