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#112-O, Jenkins v. Waterford Condominium Inc. (January 27, 1993) (Panel: Gardner, Pruitt, Cohen & Cohen abstained from consideration and decision)

The condominium owner (CO) acting for himself and as agent for several other unit owners, disputed a $15 per month assessment for their use of parking spaces in the limited common elements.

The evidence at the hearing showed that the condominium association's (C A ) bylaws state that the parking spaces are limited common elements assigned to the use of specific units; and the bylaws further state that the costs of maintaining and repairing any of the common elements that serve particular condominium units can be specially assessed against the owners of the units benefited, and the owner of any unit is required to maintain at his own expense the limited common elements which are reserved to his exclusive use.  In 1990, the C A proposed an annual budget that included a proposed fee of $15 per month for the maintenance of the reserved parking spaces, to be paid by the owners of those spaces.  The board of directors unanimously adopted the proposed budget and fees, but at the time the board did so, it had no documentation to show what the annual costs of maintaining those parking spaces would be.  Once the parking space owners refused to pay the fee the C A stopped maintaining the parking garage.

The hearing panel held, based on the C A 's Record Plat, that the reserved parking spaces constituting the limited common elements included only the floor of the garage on which cars can be parked, and did not include any other parts of the garage, including the walls, ceilings, or other floor space.  Therefore, the CO was only responsible to maintain the floor space on which his car was parked, and the C A was responsible to maintain all the rest of the garage.

The panel further found that the C A had violated its own rules when it imposed a $15 monthly fee on the parking space owners.  Under the rules, the C A must first give the parking owners reasonable notice of the repairs or maintenance it proposes to perform and can only assess the actual costs of such maintenance or repair against the parking owners, and must give an accounting to the owners of the actual amount it has spent.  The notice provided in the proposed annual budget did not comply because it did not give notice of any specific repairs or maintenance work, because the C A did not assess specific costs, and because the C A did not do any repairs and therefore did not give any accounting of work paid for.  Therefore, all assessments levied by the C A on the parking spaces were held invalid.

The panel held that the C A can only impose fees for maintenance or repair of the floors of the parking spaces if the owners are failing to maintain them, in which case it must first notify the owners that they are in violation of the rules before it proceeds to perform any maintenance or repair at the owners' expense.

The panel ordered the C A to refund any parking assessments paid by the owners of the parking spaces.