COMMON ELEMENTS AND LIMITED ELEMENTS…WHAT’S THE DIFFERENCE?

The Difference between Common Elements and Limited Common Elements

After reviewing several different single-family home and condominium association Declarations, some general similarities between the Declarations were evident in the way common elements and limited common elements are treated as far as the maintenance, repair and replacement of the common elements and limited common elements. These general similarities are being described to aid and inform Association Board of Managers as issues involving common elements or limited common elements arise. However, in each situation involving a common element or limited common element, every Board of Managers should consult the Declaration for their Association to determine how to handle the situation, because the terms of the Declaration may differ from the general provisions laid out here.

Single-family Homes

For single-family home associations, the Declarations will vary as to what constitutes a common element. Some Declarations state that common elements do not include the landscaping and land on the lot of each house but are limited to the other areas of property owned by the Association. Other Declarations state that all landscaping, regardless of what lot it is on, is a common element as well as parts of the house such as the siding and roof. There are also Declarations which describe an exclusive common element, which is a portion of the common area that is exclusively for the use of one or only some of the neighborhoods in the development. Although Declarations for single-family home associations tend to have a great variety in their definitions of common elements, general statements can be made regarding the treatment of common elements and limited common elements in single-family house Declarations.

In general, the Association in a single-family house development is responsible for maintaining, repairing, and replacing all the common areas. The Board of Managers of an Association typically has the right to adopt rules and regulations which govern the use, maintenance, and administration of the Common Areas. The homeowners typically have the responsibility for maintaining, repairing, and replacing items in the house and the areas attached to the house such as the driveway, the patio the walkways, and the fences. If there are exclusive common elements, then the responsibility for maintaining, repairing, and replacing these typically falls only on the homeowners who are in the neighborhoods which use the exclusive common elements.

There are many issues which may arise where the Board of Managers will have to determine whether the association or the individual homeowner or owners affected must pay for repair or replacement. Looking at a few examples of the issues that may arise will demonstrate the care and diligence which must be followed when determining who must pay the repair or replacement costs. One situation that may arise in a single-family house development is who must pay for the replacement of mailboxes or other such items on each lot when the need arises to replace them. In determining this, the Declaration of the association whether the Association has any rules regarding the size or type of mailbox allowed. Additionally, the Declaration and By-Laws need to be reviewed to determine whether the Board has the express power to replace this specific item. If the Board is not given the express power, then there may be some type of implied power allowing the Board to make this replacement. If there is a regulation allowing the Board to mandate the exact size and style of mailboxes, then this could be the implied power which the Board needs. Before a Board takes any action in a matter such as this, however, the Board should pass a resolution describing the actions the Board will take, and the Board should give notice to all the homeowners prior to the replacement.

Another situation that could arise in a single-family home development is damage to a house by a fire, storm, or other casualty. Should this occur, the question may arise as to who must pay for the repair. Some Declarations provide that the Association is responsible for the maintenance of parts of the house, such as the siding, but the homeowner must pay for repair and maintenance of other parts of the house. For example, if a storm harmed part of a house, such as a sliding-glass door or the siding, the Board would need to check its Declaration to see if it is the homeowner’s responsibility for replacing the siding or sliding-glass door. Typically, Declarations that call for the Association to perform maintenance on a portion of the house will make it the responsibility of the homeowner to repair all parts of the house. A distinction is made between maintenance and repair, where maintenance is simply up-keep, like cleaning and painting. In general, if a repair is necessary and the homeowner fails to make the repair after proper notice and time to make the repairs is given by the Board, then the Board may complete the repair and charge the homeowner the cost of the repair.

Condominiums

In contrast to single-family home Declarations, the Declarations for condominium properties are much more like each other. Generally, the Declarations define the common elements as all the property except for the dwelling units. This means common elements could include, but are not limited to, all the following: land, foundations, hallways, stairways, entrances and exits, common parking areas, storage areas, basement, roof, incinerator, pipes, ducts, electrical wiring and conduits, central heating and air, public utility lines, floors, ceilings, and perimeter walls of units (except the portion included in unit boundaries), outside walks and driveways, landscaping. Limited common elements are generally defined as those common elements which are appurtenant to or for the exclusive use of some, but not all, unit owners. Limited common elements could include, but are not limited to, all the following: balconies, individual heating, air, and plumbing fixtures and related pipes, ducts, wiring, the perimeter walls, floors, ceilings, doors, windows, entryways which lie outside the unit boundary, terraces, patios, parking spaces, shutters, and awnings.

A Declaration could take several approaches to repairs of common elements, but in general, Declarations state that it is the Association’s responsibility to repair common elements, and it is the responsibility of the unit owners attached to the limited common element to repair Common Elements and Limited Common Elements the limited common element. If the Board gives a unit owner notice that a repair needs to be made and adequate time to make the repair, but the unit owner does not make the repair, then the Board may make the repair itself and charge the cost to the unit owner. An example of a limited common element which might need repair is a balcony or patio appurtenant to one unit. If the Board determines that the balcony or patio requires repair, the Board should first check its Declaration to make sure it has the authority to mandate repairs to balconies or patios. If it does have this power, then the Board should notify the unit owner of the need to repair and the specifications which the repair work must comply with. The Board must also give the unit owner a reasonable amount of time to complete the repairs. It is a good idea to notify the unit owner of the timetable for repairs that the Board has in mind. If the repairs are not made within that timetable, then the Board may hire a contractor to complete the repairs and charge the unit owner for cost of the repair work.

Many of the situations involving common elements and limited common elements affecting associations are treated similarly by the Declarations of many different associations. The Board of Managers for every association should be aware of its rights and responsibilities regarding common elements because these issues often arise. While this article covers some general provisions which are typically found in Declarations, the Board of Managers of an association should consult the Declaration of their association when faced with an issue involving common elements and limited common elements, because each Declaration is unique.