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Notice needed to sell condo parking space

Paul Fletcher//September 30, 2013

Notice needed to sell condo parking space

Paul Fletcher//September 30, 2013

Parking spaceA man who tried to buy a neighbor’s parking space in a Northern Virginia condominium project is out of luck.

Although he paid $1,000 for the spot and documents of the sale were duly recorded, the unit owner failed to notify the trustees on his mortgage.

A conflict over ownership of the space cropped up after the seller’s condo unit went into foreclosure.

Fairfax Circuit Judge Dennis J. Smith ruled that the lack of notice to the trustees killed the sale of the space – the spot belonged to the man who bought the unit after foreclosure.

The case is Nicksolat v. Gharavi (VLW 013-8-094).

Mortgage company had interest

Ali Vaezi bough the unit in McLean in 2003 and a mortgage was recorded in 2005. At some point, for the fee of $1,000, Vaezi sold a parking space that went with his unit to a neighbor, Mohammed Gharavi. The papers reflecting reassignment of the space were recorded in 2011.

The trustees in the deed of trust did not get any notice that the space had been assigned to Gharavi.

Last year, the unit was foreclosed on, and the plaintiff, Mondana Nicksolat, was the successful bidder. A handwritten memorandum of the sale documents noted that the purchase included the parking space.

When Nicksolat filed a declaratory judgment action to gain access to the parking space, Gharavi and the condo association argued that a statute containing specific references to “limited common elements” – such as parking spaces – controlled over a more general provision of the Condominium Act, and that it did not require notice.

But Smith rejected that argument. Virginia Code § 55-79.57, the provision on limited common elements, states that such an element cannot be reassigned “except in accordance with the provisions of this chapter.”

Use of the word “chapter,” Smith said, meant that the entire act was implicated. Virginia Code § 55-79.73:1(C) states that where instruments are silent on consent, “no mortgagee consent shall be required if the amendment to the condominium instruments does not specifically affect mortgagee rights.”

That double negative means that if mortgagee rights are in fact affected, consent is required, and that is where the defendants lost, Smith said.

Transfer of the parking spot did indeed affect mortgagee rights. By violating that provision, Vaezi waived his right to invoke the common elements statute; the reassignment to Gharazi was “a nullity,” Smith ruled.

He concluded that when the unit was foreclosed upon, so was the parking space. Nicksolat purchased title to both and has rightful ownership.

VLW 013-8-094

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