Case Law Breakdown: Right to Assign Parking in the District of Columbia

Association boards (and owners) often ask what the law is in a certain situation. They want to know: “Is this legal?” For various reasons, sometimes the answer is, “it depends.” Often this is because their precise situation has never been addressed in a binding precedential opinion; if the question is one of first impression in the jurisdiction, then the attorney certainly cannot guarantee which way the relevant court will decide. A concrete example of this comes to us in the case of Harnett v. Washington Harbour Condominium Unit Owners’ Association, a District of Columbia Court of Appeals case.

The Need for Parking

In Harnett, the Court of Appeals took up a case where a condominium association – stop me if you’ve heard this before – had insufficient parking spaces for its resident owners. (I guess developers are just really bad at counting cars). Regardless, the condominium here appointed a Parking Committee (good decision – committees can be a great benefit for boards) who looked around and said: hey we have this extra region in the parking garage that no one is using. We all own it together anyway, so let’s just pass a policy resolution making that area into more parking spaces that ultimately benefit all of us. It will also create an additional revenue stream. Many associations have had the same or similar ideas; the logic is airtight.

The Preparation

Once you leave the idea phase, next comes implementation. This is where we sometimes determine that what seemingly clever ideas actually have issues that make them impracticable, or simply more difficult. It certainly appears that the condominium here went about this the right way. They most likely consulted their attorney in advance and had that attorney draw up the relevant documents. They notified all the owners and had a very well disclosed layout, plan, and bidding structure. This was all done with the full knowledge of the ownership and in compliance with most known property rights and laws at the time.

Why did I say “most” in that last sentence? Good catch. Had this association asked me at the time, knowing what I know about Maryland case law (which is the source of the District’s common law and an especially persuasive authority when the District’s common law is silent) I would have told them that the plan for assigning parking spaces was clearly prohibited by law. The Maryland Court of Appeals and Maryland Court of Special Appeals worked through this issue and plainly held that subdividing the common elements could not be done without the consent of all the unit owners. (Actually, the parking auction that took place here occurred in 2004, when I was in law school. So if they had asked me about it then, I probably would have pontificated loudly, confidently, and wrongly about International Shoe and then gone out for a carne asada burrito. But you get the idea – there was at least some indication that the Condominium should not try to assign these areas of the common elements as individual parking spaces).

But the association here did not ask me about their plan. They (presumably) consulted with their attorney at the time, who likely gave them a rundown not unlike this one, and ultimately said: DC is different than Maryland. Courts disagree as to the breadth of condominium power to assign the common elements. And this is obviously the best solution for us, so we will draft up the finest parking assignment policy and procedure we can, and then have confidence that it will be upheld. In short, they knew the risk, weighed the options, and made the best decision they thought possible given the information available to them at the time.

The Challenge

When associations write a policy that goes into somewhat uncharted waters, there are three common outcomes. The first is that everyone ends up agreeing that it was a good policy, and so regardless of whether or not it was technically permissible, it never gets challenged and becomes part of the well-established rules. Call this the kumbaya option. Second is that some unforeseen issues or opposition arises, and the policy gets reviewed or revised to address it. But neither of those typically leads to a decisive court decision on the issue. And for many associations, that makes the most sense. After all, who wants to spend the time, money, energy, effort, and frustration going through rounds of litigation just to find out if your condo is allowed to build in the Metaverse, or some other newly arisen issue.

Sometimes, however, there are two opposing positions. Both are reasonable (at least to those who hold them). And there is no compromise to be reached. In that instance, as here, the owner typically ends up challenging the ability of the condominium to enact or enforce the policy. And sometimes, that is how we get new case law, which guides the action of future associations. For the parties themselves, it also provides some much-needed finality.

The owner here, Mr. Harnett, made arguments about the enforceability of this new parking system, but his motivation certainly appears to be more fundamental: the area chosen by the association to use as new parking spaces was one he did not want to see repurposed. The opinion states that Mr. Harnett “had easy access to his parking space by virtue of an open common area across from the parking space. Harnett frequently accessed his parking space by driving through this open common area and, to prevent others from blocking the area, he began to park his car there.” Couple of things there: first, of course this guy is going to oppose turning that area into new parking. He is clearly impacted much more unfavorably than others by this turn of events. Second, though, take a look: he is already functionally using it as a parking space himself. Hasn’t he sort of hurt his position that no one should park there by parking there first?

Mr. Harnett challenges the parking auction in several ways. First, he received a parking auction form on September 9, which instructed him to turn it in by September 8. Since that was functionally impossible, he refused to sign or submit it. Second, he says that the aisle he used to enter his parking space, which was seventeen feet wide, would be blocked if this new parking space were to be created. Third, he states that the association hung a sign in front of his parking space directing people to the nearby elevator without his permission. He also says that, in retaliation for his challenge of the parking policy, the association delayed in making required repairs to his unit.

The Rulings: Dismissals

The trial court acted on the various counts of the complaint in two different ways. For the first three counts, the court granted a Motion to Dismiss. In a civil case, the plaintiff makes allegations in the complaint which they intend to prove later at trial. In granting a motion to dismiss, a judge is saying that we do not need to have a trial, because even if the plaintiff proved everything in their allegations, they still would not win the case. Maybe they have named the wrong party, or alleged something that is beyond the statute of limitations, or filed in the wrong court. Sometimes, however, the facts they allege simply do not constitute grounds to win a lawsuit. That is what occurred here.

First, the trial court concluded that the condominium did have the power to grant a lease or license over the common elements. (this of course is the first place where the DC court differed from Maryland above). Harnett argued that the parking space agreements were “leases,” and the Bylaws allowed only for the creation of licenses. Thus, Harnett reasoned, if he could prove that these were leases and not licenses, then he could prove the condominium had exceeded the authority granted to it in the Bylaws.

But you and I don’t particularly care about what the trial court said; it is only somewhat predictive of future results and certainly not binding on any future court where we might appear (note: obviously Harnett and the condominium cared very deeply what the trial court said – and you and I would as well if we were the parties, as we talked about earlier). Once the case goes to the Court of Appeals on the other hand, and they affirm this decision, then it becomes binding on all DC trial courts, and we care a great deal. So it is here: Court of Appeals affirmed the dismissal of this count, saying: “the Act provides that an owners’ association shall have the power to grant an easement, lease, license, or concession through or over the common elements, and the power to impose on and receive from individual unit owners any payment, fee, or charge for the use, rental, or operation of the common elements or for any service provided to unit owners.” The Court of Appeals further rejected Mr. Harnett’s argument that mentioning licenses in the Bylaws meant that leases were impliedly not allowed: expressio unius est exclusio alterius, or to express one thing implies the exclusion of others. The Court rightly noted that the Condominium Act actually states the opposite: a right is held by the condominium unless the Bylaws explicitly prohibit it.

(This is a good time to mention once again that the reason why your association lawyer asks you these questions and makes the arguments from the other side before filing your case is to save you the time, money, and hassle of finding out something we already know has been decided. Harnett’s attorney in this case could not have known the decision would go this way obviously, but future attorneys will look at that same argument of expressio unius est exclusio alterius and tell their clients with confidence that the Court of Appeals has already rejected it in this context.)

Second, the trial court dismissed Harnett’s argument that the new parking spaces violated zoning laws. The Court of Appeals affirmed.

Third, the trial court dismissed the claim for breach of fiduciary duty. This was done via directed verdict at the end of Plaintiff’s case, meaning that the condominium said: “OK. We heard all his allegations and all his evidence. We don’t even have to put on any evidence from our side; he didn’t get all the way to his burden of proof.” And the trial court agreed. Once again in affirming, the Court of Appeals gave us some useful guidance: Courts review the regulatory actions of condominium boards under a standard of reasonableness. Here, while Mr. Harnett argued that the parking policy was unreasonable, he provided very few facts to support this argument; they were mainly unproven allegations. The Court of Appeals declined to overturn the through factual findings of the trial judge. The lesson here: if you are in this situation as an association, make sure you give the trial judge ample factual basis on which to find that you acted reasonably. A thin record here might have led to a different conclusion; when the trial judge laid out all the actions taken by the association in preparing for its parking policy adoption and auction, there was no doubt that it would be upheld.

The Rulings: Judgment for Defendant

Two of the issues presented were not resolved via motion; the full trial was held, and the judge made a ruling. In both instances, the trial judge found for the defendant condominium (meaning that the policy was upheld), and the Court of Appeals affirmed.

First, the owner argued that the condominium intentionally interfered with property rights. In a cool little legal move, the Court of Appeals said, well we do not actually have such a cause of action here in DC. And we do not want to decide here whether or not we are creating one. But even if we did have such a claim (which, again, we don’t), the plaintiff here still would not succeed on it. The trial judge phrased the issue as: “was that a substantial interference with Mr. Harnett’s property rights. And on this record it seems to me the answer to that is clearly no.” So even if there were such a tort in DC, Mr. Harnett did not prove it.

Now, as an attorney, I want to say, “Please Court of Appeals just tell us if there is such a thing or not. More information from you helps us write better pleadings.” But as an observer and reader of cases, I respect the clever maneuvering here; the Court of Appeals obviously would want to create or deny the existence of such a tort in a case where it was more of the central focus, and properly briefed and argued by the parties. So they did a lovely dodge around it for now.

Second, the trial court entered judgment for Defendant on the claim that the condominium delayed in repairing Mr. Harnett’s unit as retaliation for this case, and the Court of Appeals affirmed. This type of case is notoriously difficult to prove without a real smoking gun, though people often want to claim it.

What did we learn?

Well, you have read this interminably long blog post about a case that was decided ten years ago. So what? There are a few important things to pull away from this decision. First, we talk about this here a lot, but the only way to truly find out if your new policy is “legal” is to have it tested and upheld by the courts. Here, the association took a bold but necessary action, and they were rewarded for it. The case does not always go that way, and I can assure you that during the time between them passing the policy in 2004 and the issuance of this decision in 2012, there were some moments where they wondered if it was worth it.

Second, for condominiums in the District of Columbia, the law of the land, unlike in neighboring Maryland, is that condominiums are permitted to assign portions of the common elements as individual parking spaces.

Third, condominium policies will be evaluated under the “rule of reasonableness.” So if you are a condominium board member and you ever litigate the enforceability of your policy, be sure to give the trial judge ample evidence on which to base a finding that you acted “reasonably.”

Don’t Be the Jerk

This is just a good rule of thumb for life, but it can come in especially handy when litigating a case: don’t be the jerk. You see, people often think that the judge will rule for them strictly because they say they are right. Other times they think if they yell loud enough or push hard enough, that will win them points. Perhaps they believe that casting the association as the bad guy will paint them in a better light. Or sometimes they just actually are jerks and can’t help it. Regardless, judges are actually human beings and can glean from your conduct in the courtroom whether you are acting in good faith. So it might be a good idea, as you go through your case, to ask yourself occasionally: Am I being the jerk?

(on reddit they phrase it slightly differently – you get the idea)

The reason I mention this is, reading between the lines, I get the impression here that a certain party may have “been the jerk” in this case. Did it cost him the result? Would the court have ruled differently if he had been nicer? I have no idea. But I assure you it did not help his cause. Here’s a sampling from the case:

— to prevent others from blocking the area, he began to park his car there.
— Other residential owners testified that there was a registration table and that bidders were permitted to sign up on the day of the auction, but Harnett did not register or bid on any of the parking spaces that day. He did, however, hire a court reporter to transcribe the auction proceedings.
— On the morning of the auction, Harnett parked his car in the common area across from his parking unit and his car was surrounded with “yellow caution tape.”
— Harnett was not happy. Once a car was parked in the new space across from his, he could no longer use his. According to Harnett, the drive aisle that abuts his space, which is seventeen feet wide, did not give him sufficient room to maneuver his car into the parking space.
— Harnett complained that the Association did not ask for his permission to hang the sign, and that he would have denied permission because pedestrians passed through his space on the way to the elevators and he had been forced to repair his car “at least once” because “a woman came through with her shopping cart and scratched the car.”
— The trial court proceedings spanned nearly four years, and appellants now object to the trial court’s handling of nearly every stage of the proceedings. [NOTE: this is always a super red flag. the appellate court will consider well-reasoned objections to portions of the proceedings below, but when a party acts as if the trial judge was biased and/or completely incompetent, the appellate court is unlikely to go that direction except in the rarest of instances.]
— On February 20, 2008 – over three years after Harnett initiated this litigation – he filed a motion to file a Third Amended Complaint.
— Appellants’ “factual” references in their appellate briefs include several unsubstantiated allegations that do no include trial record citations.
— Appellants assert that they suffered “real and substantial” prejudice as a result of the trial court’s discovery rulings; however, the only specific examples they provide are…
— Appellants do not explain how denial of their motion “jeopardized the fairness of the proceeding as a whole”
— Appellants’ similarly unsupported assertion…
— Trial judge: Whatever the legal theory is for Mr. Harnett’s claim, I find that there wasn’t retaliation. There wasn’t a failure to repair. The building is doing a comprehensive renovation in his area of the building that goes beyond what they are doing for anybody else.
— At the time the board decided to go forward and to create these spaces, they knew that Mr. Harnett had a problem. And they also investigated and it was their belief that while Mr. Harnett said that he wasn’t able to use his space, the board believed that not to be the case.
— The Board considered the issues raised by Harnett at a meeting. They surveyed the residents and knew Harnett and others objected to the parking spaces, but they were not required to act on Harnett’s petition.
— To the extent that appellants continue to argue that Harnett was “prevented” from registering and taking part in the parking space auction, we note that the trial court explicitly found otherwise.
— Trial judge: “I do not credit that testimony.” Given Harnett’s “considerable ability to read documents and insist on his rights,” it was not credible to claim that he believed he was too late to register.
— Trial judge: “The record demonstrates quite conclusively that this is not so, that it is possible to get in and out of the space… There is no evidence at all of any interference” with his other space due to the hanging of a sign.

Whew.

If you had just shown me that list of quotes, I would have bet the farm that the appellants did not win. And of course they did not. As a board member engaging in litigation, you may recognize this pattern. Here we have the stubborn (and perhaps disproportionately-affected) opponent of a policy you wish to enact, who has been told that his/her concerns have been raised, considered, and deemed insufficient to override the need for the policy. How many times before he arrived at the Court of Appeals had the appellant already been told that his argument was flawed? How many years, and how many motions, and how many complaints did he raise, all just to get this final answer, which was the same one he had received for years?

If you take nothing else away from this case, let it be this: whether you are a board member, or an aggrieved owner, take a moment to view the case objectively. If you have taken a position that others are contending is impermissible, or not supported by law, ask yourself if they are right. Before you spend mountains of resources and burn through all the good will in your community, consider just for a moment if it is possible that the other side is right. When in doubt, don’t be the jerk.