Can Board of Directors regulate parking in common areas?

We have received a few inquiries regarding the authority of an Association (typically exercised by the Board) to assign parking spaces located in the common areas for the exclusive use of particular unit or lot owners.  This issue arises occasionally in Southeastern Virginia, where parking is relatively plentiful, but it tends more frequently to be a contentious issue in other areas, such as the Washington DC suburbs of Northern Virginia.

The Supreme Court of Virginia issued a very important opinion in 2006 that illustrates that the authority of a Property Owners' Association, although generally including the power to regulate the use of the common areas, may not include the right to assign parking spaces.

White v. Boundary Association, Inc., 271 Va. 50, 624 S.E.2d 5 (2006), involved an Association in Williamsburg that contained nine lots and 18 common-area parking spaces.  The Board of Directors issued parking regulations that seemed at least even-handed on their face.  Each lot was assigned two parking spaces, and each owner was given the power to have towed any vehicles improperly parked in his or her space.  The plaintiffs immediately filed suit challenging these regulations and claiming that the Board exceeded the Association's authority and violated explicit terms of the Declaration. 

The Association argued that the bylaws permitted it to adopt rules and regulations for the management of the Association as its deemed proper, and the regulations were a proper exercise of the Board's authority to establish rules regarding the common area.

The Supreme Court of Virginia sided with the plaintiffs.  The Court observed that the Declaration contained a provision, which is a fairly typical provision found in many Declarations, which gave every owner "a right and easement of enjoyment in and to the Common Area," subject to three stated limitations, none of which were relevant to authority to pass a parking regulation.  The Court determined that the parking regulations were invalid because they improperly divested the owners of a property right that was granted in the Declaration.  Additionally, the Court observed that the Declaration did not give the Association authority to license portions of the common area.  Presumably, had one of the three limitations to which the owner’s right and easement of enjoyment was subject then "the right of the Association to license portions of the common area," the decision would have been different.

If your Association is considering parking regulations such as these, then it is important to review the provisions of your governing documents to be certain that the regulations would not conflict with some rights given to the owners with regard to use of the common area.  If your governing documents would prevent such a regulation, but there is sufficient support for it in the community, then the solution, as noted by the Court in the White case, is to amend your governing documents so as to permit the regulations.

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