We are often asked by Boards of Directors to assist them in determining the maintenance, repair and replacement responsibilities for certain components in their Association when the provisions in their governing documents are ambiguous about such responsibilities or are absent altogether.

First we need to distinguish the difference between ownership of common elements in a condominium association and ownership of common areas in a homeowners association.  In a condominium association each unit is owned individually and the common elements are owned jointly in common with all of the unit owners.  In a homeowners association each lot is owned individually, but the common areas are owned by the Association (not by the lot owners). To make it more challenging sometimes condominium units appear to be small lots. We realize these are subtle differences, but it is important for purposes of this discussion.


Condominiums consist of individual units and common elements.  Common Elements are defined in the Virginia Condominium Act as “all portions of the condominium other than the units.”  Most condominiums also have limited common elements which are assigned in the condominium instruments to an individual unit for the exclusive use of the occupants of that unit.  Common examples of limited common elements are balconies and patios.  Occasionally condominiums will also have limited common elements that are assigned for the exclusive use of more than one (but less than all) of the units.  Common examples are stairs and elevators that serve a limited number of units. It is important to remember that limited common elements are still common elements and are, therefore, owned in common with all other unit owners even though not all of the owners have the right to use them.  Documents often provide for maintenance of limited common elements differently.

In an ideal world the units, common elements and limited common elements and the responsibilities for maintenance, repair and replacement are clearly defined in the condominium instruments, but what if they aren’t?  Determining the designation of units, common elements and limited common elements if not clearly defined in the condominium documents can be a complicated matter that has too many variables to discuss in this article and we recommend seeking legal assistance in making these determinations.  We can, however, assist in determining maintenance responsibilities if the units and common elements are defined in your condominium instruments (or legal counsel has made that determination for you) even if the maintenance responsibilities have not been.

Section 55-79.79.A of the Condominium Act states:  “Except to the extent otherwise provided by the condominium instruments, all powers and responsibilities, including financial responsibility, with regard to maintenance, repair, renovation, restoration and replacement of the condominium shall belong (i) to the unit owners’ association in the case of the common elements, and (ii) to the individual unit owners in the case of any unit or part thereof, except to the extent that the need for repairs, renovation, restoration or replacement arises from a condition originating in or through the common elements or any apparatus located within the common elements, in which case the unit owners’ association shall have such powers and responsibilities.” {Emphasis added.}

The portion of this Code section in bold print is important because any maintenance, repair or replacement provisions in the condominium instruments will take precedence over the Condominium Act.  However, this Code section does provide for these responsibilities if your condominium instruments do not.  Don’t forget when applying the provisions of this Code section that limited common elements are part of the common elements.


The Virginia Property Owners Association (POA) Act that governs homeowners associations does not contain any provisions for maintenance, repair and replacement responsibilities.  However, it’s also usually easier to ascertain what the association and the lot owners are each responsible for. Although it can sometimes be difficult to determine who owns what in a condominium that is usually not the case with homeowners associations. The developer of your association should have conveyed all of the common areas (parks, pool, clubhouse and other open spaces and amenities) to the association.  Unless your governing documents provide otherwise, amenities and open spaces owned by the association are maintained, repaired and replaced by the association.  Lot owners are responsible for the maintenance, repair and replacement of all improvements on their lots.


If your association is still unable to determine maintenance responsibilities and you need help in finding or interpreting the provisions of your documents and the various Code provisions, we can help.  We can also assist in amending your documents to better define these responsibilities.

Please contact us if you have any questions about this information or any other association issues.