Occasionally we have inquiries regarding the authority of an Association exercised by the Board of Directors to assign parking spaces located in the common areas for the exclusive use of particular unit or lot owners.

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 unless such authority is specifically set forth in the declaration.

White v. Boundary Association, Inc. involved an Association in Williamsburg that contained nine lots and 18 common-area parking spaces.  The Board of Directors issued parking regulations that seemed even-handed on their face.  Each lot was assigned two parking spaces, and each owner was given the power to cause any vehicles improperly parked in his or her space to be towed.  The plaintiff homeowners 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 gave the board the authority to assign parking spaces.  The Court determined that the parking assignments and towing rights 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.

This ruling does not mean that a board cannot create rules regarding the use of the parking areas such as the board’s policy to remove any vehicle which is inoperable for a significant period or a vehicle that is simply being stored and not used by an owner.