common elements versus limited common elements

Hi everybody - a current topic within our condominium community is whether our Board's authority is the same for common elements as it is for limited common elements.

One opinion is that all common elements (regardless of whether they are limited common or common) are to be treated the same and the Board's authority is the same....e.g. no difference in treatment.

The other opinion is that limited common elements should be seen as different, in that they are set aside for use by a specific unit owner....therefore, the reasoning is that limited common elements should be treated differently from a Board authority standpoint.

I was wondering what ya'll thought about this. Any comments or thoughts?

Thanks!

oljim, in texas

From a maintenance perspective, we treat all such areas the same - the Association is responsible. This ensures that even the limited common areas are properly maintained. There are some small maintenance exceptions (for example - owners are required to keep decks clean) that are outlined in our documents.

Jim

Good question Tim. For our purposes, all of the above. Bottom line, are there circumstances in which common limited elements are treated differently than common elements?

One opinion says they are not to be treated differently in any circumstances. The other opinion is that there are some circumstances in which the Board needs to see the two differently...and therfore, treat them differently from a Board authority standpoint.

What do you think?

oljim, in texas

Give us a little more help, Ol' Jim. What do you mean about the board "authority" aspect? Can you give us an example?

In our condos, for example, the board, per our CC&Rs and as elaborated on in our rules & regs and in our architectural guidelines, have a great deal of authority over LCA's (in CA, exclusive use common areas)

The Board has authority over what's kept on balconies, the colors of the walls & railings, the tiles on the floors and does not permit anything penetrating the railings, ceilings, walls & floors. Owners are responsible for cleaning and painting these areas.

Our underground parking spaces are maintained by the HOA, e.g. ordinating cleaning, striping, etc. and has rules about what can be stored in them, i.e, nothing except one motor vehicle and a personal shopping cart. If cars have fluid leaks, the owner can be a called to hearing to clean it or the HOA can clean it and call the owner to hearing to levy a fine.

Our underground storages cages are Owners' responsibility to maintain except the "gate" to each which the HOA maintains. The HOA has rules against storing combustibles, explosives, etc. and state that nothing can be stored on top of them or in the room's aisles.

All of these duties and powers are found in one or more set of governing docs per my above, line 2.

Jim,

Our development only has parking spaces as limited common elements. However, since you asked for my opinion, here it is:

Maintenance - mixed responsibility depending on the element being discussed.

Example: rear yards: mowing/fences responsibility of owner
Decks/patios: Cleaning, responsibility of owner Repairs/maintenance - Association

Use: - not an issue as it's a limited common element. Limited means simply that, limited to the use of specific lots/units. Limitations on use (i.e. storage of xyz on balconies, Bar-B-Que on balconies, etc.) treated the same

Personal Decor - Treat the same as outlined by covenants/architectural guidelines

Here is some additional information from our DCC&R..
======================================================================================
Limited Common Elements. Portions of the Common Elements are set aside and
reserved for the exclusive use of the individual Owners, such areas being Limited
Common Elements. The Limited Common Elements reserved for the exclusive use
of the individual Owners are the individual driveways into each Unit, and patios
to each Unit. Such spaces and structures are allocated and assigned by the
Association to the respective Units. Such Limited Common Elements shall be
used in connection with the particular Unit, to the exclusion of the use thereof by
the other Owners, except by invitation.
=======================================================================================

In terms of the authority aspect, one opinion says that the Board has the same authority over the limited common elements as the common elements (such as what has been described in Kerry's response...example being what is kept in LCE areas, and what is not kept or stored).

The other opinion says that the Board does not have the authority to determine what is kept or stored in LCE areas and what is not kept or stored there....with the reason given that the LCE is for the sole use of the homeowner; therefore, the Board has no (or limited) authority.

Hope this helps. Thanks to everybody for helping me understand my own question...lol...

oljim, in texas

Yes Kerry - i believe you have hit the nail on the head in terms of an explanation for a difference of opinion. I've checked the Texas Uniform Condominium Act and here is what i've found...
=========================================================================================================
Sec. 82.058. LIMITED COMMON ELEMENTS. (a) The limited common elements and the provisions of the declaration relating to the right to use the limited common elements may not be altered without the consent of each affected unit owner and the owner's first lien mortgagee.
(b) Except as otherwise provided by the declaration, a limited common element may be reallocated by an amendment to the declaration, executed by the unit owners between or among whose units the reallocation is made. The persons executing the amendment shall deliver it to the association, which shall record it at the expense of the reallocating unit owners.
(c) A common element not previously allocated as a limited common element may not be allocated except pursuant to the declaration made in accordance with Section 82.055(7). The allocation shall be made by amendment to the declaration.
==========================================================================================================

And you are likely correct on needing the advice of an attorney..ummm.

Thanks!

oljim, in texas

Jim

The way I have always attacked Covenants, Bylaws, etc. is unless they specifically quote/define something, then they are open to the interpretation of the BOD. In your case as the limited common elements are not deeded (could be a whole other story) than I say the association controls them as they do the non-limited common elements.

Yes John, i am thinking the same way. If the LCE were deeded, that would be a different story altogether. However, in our case, the LCE's are not deeded.

My guess is that our Association controls the limited common areas in the same way as the common areas; however, this has been called into question. Course now, i could always be wrong...wouldn't be the first time -...lol..

I will be making a motion at our next board meeting that we get an attorney's opinion on this. Gonna be interesting to hear the results.

Thanks to everybody for responding to my questions.

oljim, in texas

Ahhhh--if those docs give the board authority, so be it. I DID misunderstand!

Even though our storage cages, parking spaces and balconies are deeded to us, the board can still make rules about those areas per our docs.

Excellent point Jeff. I will be sure to bring this up the next time this subject is visited.

Thanks!

oljim, in texas