Limited common elements (LCE) in condominiums can be spaces or things. Spaces are like parking spots, decks, and storage closets. Things are like fireplaces, windows, or wires.
When the LCE is a space, the boundaries of the space need to be defined so that the maintenance and repair responsibility can be allocated to the association or the unit to which the LCE is assigned. Often, maybe even usually, the boundary of a LCE space is the interior of the surfaces that surround the space. For a parking space it is the pavement below and the lines on each side. For a deck it is the walls, railing, soffit above, and structure below that define the LCE space.
The LCE is NOT the structure of the building which creates the space. Just as it would not be reasonable to expect an owner to repair the concrete and steel structure below a LCE parking space in a parking garage, it is not reasonable to expect an owner to repair the structure under their deck surface.
The deck surface is almost always the boundary between the common area structure and LCE deck space. Some declarations are vague as to where the boundary is, and whether a waterproof deck coating is part of the common structure, just like a roof, or if it is a “finished surface” within the boundaries of the deck space assigned to an owner.
We have rarely seen an association define the deck coatings and repair responsibility in advance of some repair project, following which a dispute arose about who would pay for the work. We strongly recommend that you resolve the responsibility for performing work on these deck surfaces and responsibility for paying for the work, prior to doing the work, so that you will avoid conflict and disputes among neighbors. This is often something that requires expertise in both construction and law to resolve.
Your association may wish to consider requesting a “maintenance matrix” from your association attorney. This is a detailed document that will pinpoint the ownership of every building element, who is responsible for maintaining and repairing that element, and who must pay for that maintenance and repair. A maintenance matrix can prevent confusion over who pays for what, and can also pinpoint areas of ambiguity or even outright contradiction in your governing documents. Ambiguities can be resolved by a reasonable board resolution clarifying the responsibility for the relevant element, or the association may need to consider amending the declaration to make it clear – who owns what? Who has to take care of it? And who pays for that care?
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!