The New Jersey Cooperator, the Condo. HOA & Co-op Monthly, September 2012.
Q We are a small, self-managed association that has a complicated problem that needs to be solved. The problem concerns the 25th garage and the association’s inability to obtain this particular garage. The original architect built 24 garages for every one of the 24 units. He also envisioned that an extra garage was needed in order for the association to use to store equipment needed to maintain the property. The architect’s parents lived in one condominium and they had access to both of the garages. Ten years have passed since the condo was sold and this sale included only one of the garages. The problem is that no one has the deed to the 25th garage. What is the legal way for the association to gain legal possession of this garage?
—Taking Possession
A “The determination of the ownership of all of the garages, including the “25th” garage, should be specifically addressed in the master deed of the condominium,” says attorney Jason T. Shafron, who is with the law firm of Archer & Greiner, P.C. in Hackensack. “The master deed spells out, in some detail, the division of the land and structures into units and general and limited common elements. Units are deeded to and owned by individuals. The remainder of the land and structures are common elements and are not individually-owned. All units have an indivisible interest in the common elements, and have an equal right to use them. However, a portion of the common elements may be designated limited common elements and reserved for use by owner(s) of a specific unit(s).
“Based on the facts here, each of the 24 garages are likely units specifically deeded to the owners of each residential condominium unit. A unit owner can review their own deed and related closing documents to see if a garage was deeded to them with their residential unit. Assuming that the 24 garages were deeded, the issue is only how the master deed addressed the “25th” garage.
“Since you describe the architect having “access” to two garages, it is possible, although unlikely, that the architect’s unit had originally been deeded two garages outright or permitted to use them as limited common elements. Even more unlikely, the architect may also have been a “sponsor” and was (or continues to be) the owner of the unsold 25th garage unit. The most likely scenario based on what the architect “envisioned” and that the architect’s unit was sold with only one garage is that the “25th” garage is described in the master deed as a general common element. If so, then the association already has the legal right to use and control this garage. If someone is nevertheless occupying the “25th” garage, the master deed, bylaws and any related rules and regulations should be consulted with respect to notice and legal action to remove the trespassing occupier. Typically, the process would begin with a letter to the occupier giving them notice that they must vacate the common element within a certain amount of time before the commencement of legal action will be undertaken by the association.”