In the vast majority of Residential Condominium in Southwest Florida, the Developers have assigned certain parking spaces to certain units as limited common elements appurtenant to those units.

Chapter 718, Florida Statutes defines limited common elements as: “those common elements which are reserved for the use of a certain unit or units to the exclusion of all other units, as specified in the declaration.”

Typically the original declaration of condominium locks a developer assigned limited element common parking space to the unit it has been assigned in perpetuity and the space therefore cannot be assigned, transferred, swapped or sold to another unit owner.

This can be an issue for some owners as some may want to get a parking space closer and more convenient to their unit or one that is better designed or located to parking their unusual sized or handicap equipped vehicle. Sometimes an owner will acquire two (2) units and want to swap the units assigned spaces and then sell one (1) of the units along with the exclusive right to use the other unit’s original assigned space.

The inability to reassign such parking spaces left by the developer can be overcome if the declaration is amended by a vote of the owners to allow for such.

Section 718.106(2)(b), Florida Statutes now provides that: “There shall pass with a unit, as appurtenances thereto: . . . (b) The exclusive right to use such portion of the common elements as may be provided by the declaration, including the right to transfer such right to other units or unit owners to the extent authorized by the declaration as originally recorded, or amendments to the declaration adopted pursuant to the provisions contained therein. Amendments to declarations of condominium providing for the transfer of use rights with respect to limited common elements are not amendments that materially modify unit appurtenances as described in s. 718.110(4). However, in order to be effective, the transfer of use rights with respect to limited common elements must be effectuated in conformity with the procedures set forth in the declaration as originally recorded or as amended under the procedures provided therein.” (Emphasis added)

So if you want to allow your owners to buy, sell or trade their assigned parking spaces with other unit owners, you can go for a vote of the owners to amend your declaration to permit such transfers. Many times we will add such transfer ability language when we do a total rewrite and update of an Association’s governing documents if that is the consensus desire of the Condominium’s owners.

What if the owners of a condominium believe they were assigned limited common element parking spaces but their declaration of condominium does not reference any such assignments?

Section 718.110(14), Florida Statutes provides that: “Except for those portions of the common elements designed and intended to be used by all unit owners, a portion of the common elements serving only one or a group of units may be reclassified as a limited common element upon the vote required to amend the declaration as provided therein or as required under paragraph (1)(a), and shall not be considered an amendment pursuant to subsection (4).”

So, such an amendment would work to codify owners’ assigned parking spaces or to limit other areas of the property to certain owners such as particular stairways, elevators, landings, storage lockers or floor specific amenities) only as intended by the developer or the property layout but never specified in the original declaration.

Rob Samouce is a principal attorney in the Naples law firm of Samouce & Gal, P.A. He is a Florida Bar Board Certified Specialist in Condominium and Planned Development and concentrates his practice representing condominium, cooperative and homeowners= associations in all their legal needs including the procedural governance of their associations, covenant enforcement, assessment collections, contract negotiations and contract litigation, real estate transactions, general business law, construction defect litigation and other general civil litigation matters. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. If you have any questions about the column, Rob can be reached at www.SandGlawfirm.com.

This article originally appeared on Naples Daily News: Your assigned condo parking space may be more valuable if it is transferable