Who Pays for Limited Common Element Maintenance?

Written on December 3, 2010 by Ken Harer in Governing Documents

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.

Butwhat 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 itis 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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24 Responses to Who Pays for Limited Common Element Maintenance?

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December 3, 2010 | 7:40 am

[…] This post was mentioned on Twitter by Condo Law Group, Valerie Farris Oman. Valerie Farris Oman said: New on CondoLaw blog Who Pays for Limited Common Element Maintenance?: Today I was asked again about whether th… http://bit.ly/gAGaV8 […]
Michael
June 7, 2011 | 5:39 am

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.
Suzie
June 15, 2012 | 9:23 pm

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?
mike spieker
June 19, 2012 | 5:35 am

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.
Valerie Farris Oman
June 20, 2012 | 6:20 pm

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).
Valerie Farris Oman
June 20, 2012 | 6:30 pm

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 circ*mstances and walk the board through its options.
Dominick Young
September 6, 2012 | 1:07 am

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?
Valerie Farris Oman
September 6, 2012 | 3:06 pm

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!
Vi
October 11, 2012 | 5:37 am

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.
Prachee
March 5, 2013 | 3:55 pm

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.
Valerie Farris Oman
March 5, 2013 | 4:02 pm
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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.
Sandi Barnes
May 22, 2013 | 3:44 am

I agree some documents are not clear regarding who is responsible for cleaning, repairing etc. However, mine are. They specifically state, for example, that fences, patio slabs, etc are common elements.And will be maintained by the association as a common expense.The owner is responsible for maintaining the inside of the patio area and the non-structural elements of it. This means the “space”. The private company we contracted with to maintain all common areas and elements misinterpreted this by stating they will individually charge owners separately to clean the backside of the partial white vinyl fence that faces in to the patio area. Wrong!
Norm
October 7, 2013 | 8:33 pm

I was wondering if you could help answer a question. We live in a condo in IL and the condo by-laws stated that all windows and doors were considered CEs and the associations responsibility to repair and replace. In 2012 the association replaced our sliding patio doors,the board asked for a legal opinion prior to doing it. They rec’d one saying there was some ambiguity in wording between the by-laws and declarations regarding the windows but in the atty’s opinion it was the associations responsibility to replace them. They board vote on and accepted his opinion,then voted to replace my door and my neighbors door which they did in Nov 2012. Fast forward to 2013, there is a new condo board in place and in March it issued a resolution stating that windows and doors were now considered LCEs. In September they sent us a letter saying that the previous board rec’d bad legal advise and they want us to reimburse the assoc the cost of replacing the doors. They are not going after any of the other 38 unit owners that have had repairs made to their windows (albeit not to the extent that we did)since 1996 when the assoc was formed. So my question is can the association retroactively (not to mention selectively)enforce the Resolution they passed in March? Any advise would be extremely helpful.
Mary Rimlinger
August 30, 2014 | 6:05 pm

My dryer was no longer drying clothes efficiently. Suspecting plugged vent line, I had the dryer inspected and cleaned, as well as the vent line from the dryer up to the main vent. The main vent runs in the walls and services four separate units. A professonal vent cleaning service inspected the building, noting that the four interior units shared the main vent line while the two end units had individual roof vents. Prop management claims a limited common element absolves them from cleaning and/or replacing the main line built in ’72. I agree to clear the line from my dryer up to the main line but feel the main line is management’s responsibilty as it serves multiple units. I’m unable to pay for replacing the main line for the entire building, nor feel it’s my responsibility. The inspection company cited the entire building as a potential fire hazard – a great safety concern. Suggentions for my rebuttal and getting prop mngmt to clear the main line? This is in TN.
Colin
September 2, 2014 | 4:27 am

The Articles of my Condo in Maryland define our windows and exterior doors as being part of our units and are the responsibility of unit owners, but they are clearly (?) limited common elements.
Does the fact that they are actually limited common elements and not invalidate our Articles?
ken marcus
August 27, 2016 | 2:54 pm

Does the Association have to represent the individual owner
who has a construction problem with his terrace on a limited
common area basis. This problem of drainage slope has existed since the building was built and the owner, who bought new from the developer has not required the developer to fix same. Our CC&R’s require the Association to maintain the limited common areas. The key word is to maintain. This
is an ongoing problem of drainage from construction not a maintenance problem.
george mackoul
April 9, 2017 | 11:28 pm

OUR CONDO SAY THAT ASSIGNED PARKING SPACES CANNOT BE TRANSFERRED AT SALE OF THE UNIT. tHE PEOPLE WITH THE PRIME PARKING CLAIM THEY POSITION OF THE OF THE PARKING SPACES AND FOREVER AND CAN TRANSFER THE SPACE TO THE BUYER WHEN THEY SELL. tHUS THEY SAY THEIR SPACE HAS VALUE,BUT THE GAVE NO CONSIDERATION TO THE ASSOCIATION IN EXCHANGE FOR THIS VALUE. WHAT IS YOUR OPINION ON THE MATTER.
Valerie Farris Oman
April 11, 2017 | 6:37 pm

George, in order to answer your question, we would have to review the governing documents for your Association. Each community treats parking spots differently – sometimes they are legally a “part” of the Unit, other times they are a limited common element specifically assigned to the unit, and still other times they are common elements administered by the Board. We can’t give legal advice to non-clients, but you should look to what your Declaration/CC&Rs say about the parking spots as your starting point. Good luck!
Viincent
November 7, 2017 | 7:33 am

I am confused by your question about 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?
I believe ours is the second type. If so, what does that mean? Our By-laws state that unit owners are responsible for cleaning and maintaining the area described as their balconies. The meaning of “maintain” is confusing. Did your comment about “part of the deck structure, providing the waterproof protection to the structure of the building” mean that it would not be considered an LCE?
After 10 years, the coating is failing, which is resulting in leaks to the unit below. Thanks, so much!
Valerie Farris Oman
November 7, 2017 | 10:38 pm

Hi Viincent. The answer to your question depends on the specific wording in your Declaration/CC&Rs and is not something I can answer in a blog comment. We’d be happy to talk with your board of directors about reviewing the documents and offering our legal opinion if they would like to contact us. Good luck!
Vincent
November 9, 2017 | 3:34 pm

Hi Valerie,
Our documents do not address the notion of whether our “Deck Coating” is “a finished surface on top of the deck structure,” OR “part of the deck structure, providing the waterproof protection to the structure of the building?”
It would seem the type of coating is an empirical question, as opposed to a legal question. Do you have any direction as to how this is determined?
If, indeed, our deck covering is a “part of the deck structure,” as opposed to a “finished surface on top of the deck structure,” then (regardless of specific wording in our documents) is such a coating typically treated as common area, as opposed to Limited common area?
Could you direct me to a discussion of these differences?
We are not yet to the point of asking for a formal legal opinion, but will keep you in mind based on what else we are able to discover.
Thanks,
Vincent
Valerie Farris Oman
December 4, 2017 | 9:14 pm

Hello again Vincent. Although the “parts” of the deck may not be specifically called out in your Declaration, the Declaration would have to be a part of what we’d review to answer your question. It would also depend on how your decks are constructed/sealed. There is no “common” or typical answer to this question, which is rather very fact-specific. I’m sorry I can’t be more helpful!
Joanne Stevenson
February 24, 2018 | 8:51 pm

I live in a 27 unit condo & there are just 2 small garages with roof decks so called common limited areas. These roofs are about 35 feet by 15 feet . A ridiculously large deck to maintain.
I asked who maintained this deck & was told by the board they did all maintenence.
There is no protection whatsoever from weather so boards rot after each winter. They are not treated deck boards but just boards. Aldo slop of roof was not properly done so water
Collects under boards constantly.
This deck is constantly used with ladders when maintaining upper units so is not just for my use. The constitution was rewritten several years ago &’stated that now I must maintain roof deck?….not really a deck. However before this is put into effect deck & railings would be in like new condition. This was not done as chesp boards were once again installed & railings loose & dangerous.. Also a clause stated anything weather
Related the board would cover.
Last year a lovely light gray roof was put on roof. My finances were bad so spoke with
President of board &’explained I didn’t wish to do it at that time. She is a real estate condo
Attorney. She spoke to my daughter &’said I do not need to install a deck if I don’t want it.
“It is just a roof and no need to do anything”. I assumed she was knowledgeable. Not so!
This year the management co. Covered the roof with ugly plywood boards to protect the roof he said since I refused to I all a deck. These boards have gaps between & irregular sizes & already warping. It’s like he is punishing me! Is this legal?
Valerie Farris Oman
February 28, 2018 | 2:24 am

Hi Joanne. I’m afraid that your questions are a request for legal advice, which we really can’t give in a public forum (and to a non-client at that). If you are concerned that what your Association is asking of you is unfair, you may want to consult with an attorney that has community association experience. Many of them represent individual owners as well as the associations themselves. I hope you find the assistance you need!

FAQs

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Maintenance of limited common elements usually remains the responsibility of the HOA unless otherwise specified in the declaration. Much of this is paid for through the collection of monthly condominium fees from unit owners.

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Limited common elements can be a little more confusing and are defined as a portion of the common elements reserved for the exclusive use of one or more, but less than all, the units (i.e. patios, balconies, and front stoops which only serve one unit).

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A common element is defined as all portions of the property except the units. Examples of common elements include fitness centers, elevators, lobbies, walkways, lighting in common hallways, garbage collection areas, swimming pools, landscaping, club houses, and more.

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Limited common elements are an important consideration when purchasing a condominium unit because they define areas owned by the condo association but used or shared by some of the occupants. Examples include porches, balconies, and patios.

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Unlike the common elements, the limited common elements are restricted to the use of one or a few unit owners. The right to use limited common elements is appurtenant to one unit or group of units, meaning that the right to use the limited common elements is tied directly to that unit or units' ownership.

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These fees are usually collected monthly and are used to cover expenses such as landscaping, cleaning, snow removal, security, and general upkeep of the common areas.

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References