Published on: March 14, 2001
The Massachusetts Appeals Court in two recent decisions has provided some clear guidance with respect to the transferability of exclusive use parking spaces, or what many in the industry call deeded parking. It should be noted, however, that in the majority of situations we are not really talking about “true” deeded parking. True deeded parking would be where the parking spaces themselves are units with their own percentage interest. (There is some question whether from a strict reading of the Massachusetts Act this would be permissible. However, there are substantial numbers of such parking units and, in fact, there are numerous garageominiums). What is commonly referred to is deeded parking is a grant of the exclusive right and easement to a unit to use a particular parking space or spaces. This is contrasted to nondeeded parking where parking is unassigned or within the authority of the board to assign.
The two cases before the Court presented fairly common facts. In both the developer in the first deed to a particular unit granted the exclusive right of use to certain spaces. The unit owner then immediately entered into 99 year leases – in one case with his wife and the another back to the developer. Those parking spaces were thereafter used by persons nonresident at the subject condominium.
In both cases the Court ruled that the 99 year leases were void. Those rulings were premised upon the fact that in both documents the wording was that the right to use the parking space was granted to the unit as an appurtenance. The documents also, as is fairly standard, provided that no appurtenance could be separated from the unit and conveyed, etc., alone. Thus, the Court concluded that a leasing of the spaces separate from the unit was impermissible.
But, you say, your master deed permits the separate rental of spaces to other residents in the condominium and allows the transfer (sale) of spaces between owners. Is that now invalid? Fortunately, the Court indicated that such is not the case. Rather it noted in both cases that neither master deed made any provision for transfers separate and apart from the unit to which the parking space was appurtenant. However, the clear language used in both cases indicates that such transfers would be permissible if permitted by the master deed.
Thus, as is often the case, answers as to what is or is not permissible turn on what the documents provide. Should questions arise at your condominium whether transfers of the right to use parking spaces are permissible, the first place to turn is your documents.