Common Definitions
Q.I am considering buying a new home and have looked at several. One is in a condominium. I really do not understand what is meant by unit, common element and limited common element. Can you explain the difference? What impact do the definitions have on my maintenance responsibilities?
A.The easy part is in defining the terms. The hard part is applying those definitions.
Common Element: means all those portions of the property that are owned by all of the unit owners as a group and which are for the use of all of the owners.
Limited Common Element: means a portion of the common elements so designated in the declaration as being reserved for the use of a certain unit or several units to the exclusion of other units.
Unit: means a portion of the condominium designed and intended for individual ownership and use.
It is important when you are considering purchasing a condominium that you review the declaration and determine exactly how each of these terms are defined in that specific condominium. In almost all associations the streets, the sidewalks and the recreational facilities are all common elements. In other associations the common elements will include the roofs, exterior siding and trim and other parts of the buildings, including interior load bearing walls.
Limited Common Elements vary from association to association depending on the definition in the documents. They may include stairs, patios, balconies, parking spaces and other items where the use is restricted to less than all of the unit owners. Hence, the term "limited" is applied.
Units most often consist of the interior space and the fixtures included in the dwelling area. This means that, for example, appliances, air conditioning, carpeting and cabinets are most often part of the unit. In some cases, the windows, doors, plumbing and electrical wiring serving only a particular unit are also part of the unit.
The next issue you raise is the impact of these definitions on maintenance responsibilities as between the owner and the association.
One helpful tool, if the Association has one, is a maintenance responsibility chart that shows each item as to type and who is responsible for maintaining each particular item. If the association does not have one, the board of directors should consider creating one, as it well help all owners and board members to better understand who is responsible for each item. This also should be reviewed by the association's legal counsel before publishing it to insure that you have correctly interpreted the documents.
It is important to remember that common elements and limited common elements are always under the direct supervision and control of the board of directors of the Association. That means that the board can limit or control their use, operation, maintenance and repair; but, again subject to any limitations that exist in the Condominium Act and any limitations or requirements in the declaration. For example, boards can control what can be placed on balconies and patios even though they are limited common elements. They can control what is done with, on or in limited common elements, such as prohibiting the use of grills on balconies. They can prevent window and door trim from being painted, covered, or modified. Of course, no modifications may be made to limited common elements unless approved or authorized by the board of directors.
Another important reason for defining limited common elements is to allow transfer of the responsibility for the cost of maintenance or repair of a component to the owner. Clearly, if a limited common element is damaged or destroyed by an owner as a result of an intentional or negligent act or omission, that owner is responsible for the cost of maintenance and repair associated with the damage or destruction. Many declarations also transfer maintenance, repair and replacement, or the cost of maintenance, repair and replacement, to the unit owner to whom the limited common element is assigned. The declaration can identify specific limited common elements such as doors, windows, and window components that are to be painted, maintained or repaired by the association but assessed to the individual unit owner. Similarly, the declaration can specify other limited common element maintenance and repair to be the responsibility of the association, such as parking spaces, balconies and patios. The declaration can provide that the board have discretionary authority to decide who is to pay for or perform maintenance, repair or replacement for each limited common element. In such a case, the board can exercise its discretion separately with respect to each limited common element.
In each case, the declaration's wording will control. The board must follow that wording. If the declaration allows, the board can tell the unit owners that the cost of painting the front doors will be charged to each separate owner but will be contracted by the association.
As you can see, the responsibility for maintenance can vary greatly and it requires familiarity with the condominium documents to determine them. There is no short cut, but that knowledge is essential to your knowing whether or not you wish to buy a unit in a particular condominium.
Our condominium board has allowed individual unit owners to construct screened porches on limited common elements. Is this allowed by the Virginia Condominium Act or is it actually an expansion of the unit which would require 100% approval by homeowners?
RESPONSE: "Expansion of a Unit" would mean adding to and/or changing the boundaries of the Unit itself. You have acknowledged in your question that the Unit itself is not changing, but instead there are only improvements being made to the Limited Common Element of a particular Unit. Whether or not this can be done with only the Board's approval (versus approval required by an Architectural Review Board or the other owners) would be likely dictated by any special requirements or restrictions in your condominium instruments that discuss what an Owner can and can't do on his/her Limited Common Elements.