Discussion Forum Follow-Up: Whats a . . .
Discussion Forum Follow-Up: What's a Common Area in My HOA?
A reader on the HOAleader.com discussion board asks a question many associations end up grappling with: What's a common area?
A handful of owners in our reader's townhome have decks, rather than concrete slabs, which everybody else has. The governing documents don't reference maintenance for decks. Our reader wonders: Who's responsible?
The broader question is how do associations and owners determine what's a common element or a limited common element, and what's owned by a specific owner when the governing documents are vague?
Different Types of Common Elements
"There are two classifications of common elements, limited and general," explains Harry Styron, an attorney at Styron & Shilling in Branson, Mo., who's drafted covenants for more than 100 subdivisions and more than 40 condominiums. "A limited common element is one that's available or accessible to fewer than all the units. Some of those are said to be exclusive-use limited common elements. A deck that's accessible to only one unit is probably a limited common element. The association continues to have a regulatory function for limited common elements. It may have a right to regulate them by doing things like prohibiting animals from living out there or prohibiting macramé flowerpots. But the responsibility for maintenance generally goes with the owner it's attached to.
"Common elements," Styron adds, "are property not included with any unit and owned by all the owners. In a normal condominium, everything is either a unit or a common element, and all the common elements are owned by the association." The association bears full responsibility for maintaining and governing activity in common elements.
The Rules Can Be Hard To Follow
But common elements can get complicated. For example, how should windows be classified? "According to the Uniform Condominium Act and the Uniform Common Interest Ownership Act, windows facing the outside are limited common elements," explains Styron. "Control of them is vested in the association, but the cost can be allocated to unit owners because they're exclusive-use common elements."
There can also be complexities in multiple-building associations. "If the association has several buildings, stairways and elevators may be limited common elements for that building only," says Styron. "Only those unit owners may be assessed for their repair or maintenance. That may not sound fair, but suppose one of the buildings was a two-story building that had no elevator. Why would you want to assess the owners who chose to live in that building for an elevator in a building they didn't choose to purchase in?"
To top it off, there can be differences in how limited common elements are handled. "Ownership, control, and maintenance responsibility aren't the same with regard to some kinds of limited common elements," explains Styron. "For example, the entry doors for units in a condo typically are limited common elements. So the responsibility for their maintenance is going to fall on the unit owner unless the association chooses to have a program to maintain entry doors. The association might prohibit you putting outlandish decorations on your door. But if the lockset wore out and needed to be replaced by the association to keep those consistent, the association would charge you for it. That shouldn't be a general cost assessed to everyone."
Do Some Research
In our reader's situation, the answer comes down to some research. "The first thing you do is look to your state statutes and your governing documents," says Debra A. Warren, principal of Cinnabar Consulting in San Rafael, Calif., which provides training and employee development services to community association management firms and training and strategic planning sessions for association board members.
When you review your governing documents, also check your plat (a map that shows the land divided into lots, shows easements, etc.). That's important because the determination of common elements is often one made by a developer or architect. "Take a look at your deed, plat, and survey," recommends Lisa A. Magill, a shareholder and association attorney at Becker & Poliakoff PA in Fort Lauderdale, Fla. "When you bought your property, you received these documents that have a boundary survey that says exactly what you own and what everybody else owns."
But don't be surprised if you don't own what you thought you did. "The look of the property doesn't give it its legal nature," says Magill. "And limited common elements are very document specific. Every developer is able to control how that's set."
Often that determination isn't made with much thought. "It's an arbitrary choice made by the developer," says Styron. "Sometimes those choices aren't made with much care because developer and architect aren't concerned about it at that point, so they do something that's arbitrary. And it's difficult to reclassify those things once they're classified."
If Your Documents Don't Answer Your Questions
If your governing documents, plat, and survey are all silent, individual homeowners must step up. "There are probably areas in the country where there are geographic norms," says Warren. "But in general when the documents are silent, the maintenance and repair falls to the individual homeowners in the states whose rules I follow--Arizona, California, Nevada, Oregon, and Texas."
If you don't think that's fair, seek help. Magill has seen very vague governing documents, especially in older communities. "Then it's a process of elimination," she says. "You review all the documents in concert with each other and, if necessary, the site approvals. If it's still not clear, you may need a lawyer or surveyor to figure out what's correct. There have been times when I've had to hire a surveyor for my clients so we knew where the property boundaries were."
You may also need to amend governing documents that are silent or vague about common elements. "You'll need to engage the services of an architect or construction specialist to help you create an inventory of all the items that could be considered common or limited common elements," says Warren. "Once you have that list, as a community, you need to create an amendment to the government documents to define what's in place. It's important to get that list clarified so everybody knows what to expect."