Today I was asked again about whether the waterproof coating on a limited common element deck was the unit owner’s responsibility or the condo association’s responsibility.
The answer depends on your specific condominium declaration, and depends on several factors, most of which owners and managers are confused about.
First is the boundary of the limited common area. Often the boundaries of the “deck” are defined as the surface of the perimeter walls, rails, fences, windows, doors, etc. So in effect the limited common area is a block of air surrounded by the structural elements that make up the deck. The association maintains everything except the block of air.
But what about the deck coating? Is it a “finished surface” on top of the deck structure, or is it part of the deck structure, providing the waterproof protection to the structure of the building? Rarely does a condo declaration do a good job of defining this. Sometimes the board will need to pass a resolution to set a consistent standard for their building. Better still is to amend the declaration to define the boundary and responsibility for cleaning differently from the responsibility for repair and replacement.
Second is whether or not the costs for allocating repair expenses to specific limited common elements can be passed to the unit owner to which it is assigned. Some declarations clearly pass those costs on to unit owners. Some declarations clearly do not. The problem is that some have a conflict drafted into them, making the answer unclear. Each position can point to a specific section of the declaration to support their preference.
To make this more complex, the term “maintenance” is broad and could refer to cleaning, or to repair and replacement activities. The term is almost never defined by the declaration, and most boards have not differentiated this term from cleaning, repair, or replacement.
The issue of who pays for specific portions of the building repair can extend to anything that is designated as a limited common element. More modern declarations may assign windows, doors, wires in the walls, pipes in the walls, fireplace flues, dryer vents, or anything that serves only one unit, as limited common elements. It often requires a more thorough analysis of the condominium declaration, and the physical makeup of the building, to determine what the association is responsible for maintaining and paying for, and what the unit owner is responsible for maintaining and paying for. Often the association is responsible for performing work which the unit owner is responsible for paying for. You want to make sure that when that happens, the owners are informed in advance and expecting to pay for services provided.
It is best to clarify in writing the responsibilities of each party, and the dividing line between them, before you have some major repair, or an unexpected expense like a broken pipe to deal with.
If you have any questions we can answer, please feel free to leave a comment or contact us directly. We look forward to continuing this conversation with you in our future posts!
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I have a question about a specific instance within our association. We had a burglar force entry through our front door to our 34-unit building. The intruder forced entry to a unit on the 5th floor, destroying the unit’s front door and jamb in the process. The association documents are clear that the unit front door is an LCE but it is not clear if it is the unit owner or association that is responsible for the replacement of it ($2,600 for the custom door). I have heard one opinion that said it is the unit owner’s responsibility because it is an LCE and another opinion that it is the association’s responsibility because the association is responsible for security in the building. Your advice is very much appreciated.
I’m confused about units with a deck. Only one side of the building has them yet we all pay the same maintenance fee. If I’m not able to use it, shouldn’t the deck be included in their square footage and they pay maintenance according to that additional space?
We have a 22 unit association. One owner has a fireplace with a chimney that is crumbling. The Washington State Condominium Act describes flues but not CHIMNEYS as being LCE. The Board wants the owner to repair the chimney. The owner says the CHIMNEY is a Common Element and the Association should pay for the repairs. (Not able to find a specific reference to Chimneys in the Condo Act). IF it is indeed a Common Element, can we CAP the chimney?
Thanks!
(2) If any chute, flue, duct, wire, conduit, bearing wall, bearing column, or any other fixture lies partially within and partially outside the designated boundaries of a unit, any portion thereof serving only that unit is a limited common element allocated solely to that unit, and any portion thereof serving more than one unit or any portion of the common elements is a part of the common elements.
Suzie – thanks for your question. Your governing documents should have guidance about whether the cost of deck maintenance is the responsibility of individual unit owners or a common expense shared by all owners. In general, whether or not all owners have to get to use a certain element (such as a deck, porch, etc.) is not what governs who has to pay for the maintenance of that element. It is not uncommon for elements that are NOT used by all owners to be paid for as common expenses shared by all owners.
If the governing documents do not reflect a “fair” allocation of costs, they may be amended by the association. It is possible to amend the documents to require that common expenses benefiting less than all units be assessed against only those units that are benefited (like deck maintenance at your association).
Mike, the answer to your question is likely to be found in your governing documents, which should detail whether the chimney is a common element or limited common element. We actually represent your association, so feel free to give us a call so we can ask a few more questions about the circumstances and walk the board through its options.
Thanks so much for this post. It helped put some things in perspective. I do have a question that’s still not answered though.
Say there is an issue with the installation of windows in a condo building, such that 30% of the units windows leak water into the units. Are these windows considered common areas?
Dominick, whether the windows are common elements or limited common elements (or even a part of the unit) will be the same regardless of whether they are leaking. To put it differently, the issue of the leak won’t change how the windows are characterized. And the answer to your question is likely to be found in the governing documents (Declaration/CC&Rs) for your association, so I can’t answer that for you here. If you believe there is a real issue with the windows that needs addressing, you should try talking with your board first to find out (a) if they are aware of it; (b) what, if anything, they are doing about it; and (c) how THEY believe the windows are characterized in your governing documents. If your board is not responsive for some reason, you may wish to consult with a community association attorney who can help you interpret the documents and give you some guidance on how to proceed. Hope that helps!
Hi there, I enjoyed the post very much. I am a top floor owner and has a stairs leading to a roof, which would provide me with an easier access to the roof top. However, my HOA is trying to limit roof top access period. They’re claiming to change my locks on the door leading onto the roof top. I thought doors in my unit are limited common and a part of my boundaries. I don’t understand why the HOA can decide to come in and claim they’re going to change my locks (so entry cannot be made from each end).
I hope this makes sense and I just feel confused. I also wondered, since changing such locks will require the lock smith to come into my unit and make such change….if I don’t allow entry on this matter, am I breaking a rule/law? am I obligated to open my private door to the HOA so they can lock down my access to the roof top? thanks.
Hi, I am a top floor condo owner in illinois. But I am not living there for last 4+ years. I recently found out from a friend, who also look over the condo, that wooden boards in the balcony are rotten and so not safe. This is a safety hazard issue. I wrote to the CPM of the condo. According to her, this is a limited common element and not the responsibility of the association. I have heard that this is the responsibility of the association. So now I am confused. I am physically not present there and that is also making the situation tough. Please advise. Thank you.
Prachee, the answer to your question – who is responsible for the maintenance and repair of the decks – is in the governing documents for your association. If you are unable to determine the answer after reviewing the documents yourself, you should take the documents to a qualified professional (attorney practicing condo law) to ask for help in pinpointing who is responsible. You might also ask the board of directors to point you to the section of the documents they are relying on to claim that the decks are not the association’s responsibility. Good luck.