Limited vs Common Element Roof

To say anything intelligent, I would want to see your Condominium's Declaration. I have seen Declarations that do permit assignment of maintenance and repair costs for certain common elements to the unit owners who are principally served by the common element. E.g. roofs.

In my experience, what is a common element and limited common element is explicit in the Declaration . (Though sometimes the Declaration indicates the plat is a part of the Declaration, and a trip to the County Clerk's to review the plat is needed.) If the roof is said to be a "common element," (and not "limited common element") then this usually, but not always, means that all members (in your case, for both buildings) share in the cost of replacement. On the other hand, and as I wrote above, sometimes a Declaration permits assignation of the expense of repair of a common element to only the members who are principally served by this common element. In particular, I have seen the latter caveat where multiple buildings are involved, just like your situation.

I would rather read your Declaration. In my experience, for many HOA matters it takes someone well versed in the lingo to interpret something like this. Maybe you are well versed; I do not know. We are strangers.

What I am aware of is that the courts start with the 'plain meaning' of what is in the Declaration. Condos all the time assess to all members the cost of repairing a common element, like a water supply pipe, serving only one building out of many within the condo. Granted this seems inconsistent with declaring that Building 1's roof is the responsibility of only Building 1's members while Building 2's roof is the responsibility of both Building 1's members and Building 2's members.

Yet I know of a condo Declaration that has a section titled "Specific Assessments." This section gives the condo some leeway to assess, under certain conditions, the members in a certain building for the costs of repairs to what are common elements, with the particular common elements serving only the one building. Is there a section titled "Specific Assessments" in your Declaration?

I am not sure what a court would say about your situation. In context, maybe the court would conclude that the matter either was ambiguous, or there was some kind of inequitable logical inconsistency, and so xyz rule of law should apply. I know that, if I owned shares in Building 2, and had bought on the premise that the Declaration means what it says, then I would not be happy that I was now being told that the Building 1 owners did not have to pay for Building 2's roof.

I appreciate your opinion. I am just sharing mine. I think I'd be poring over the Declaration looking for wording to reconcile the situation. If all the HOA attorneys in the world were not available, then I think as a director I would do what the Declaration says: Assess the cost of an explicit common element to all owners, since this is the 'contract' on which all agreed when they bought.

William, to be clear, the "wording" (or "plain meaning") is used as long as the wording is clear and not illogical. Of course, what is "clear" and what is "logical" is often subjective. The courts (and anyone in a position of authority to rule, including hoa and condo boards) do the best they can. If a court finds the wording to be ambiguous or failing the common sense test, then the court will look at intent, context and so on at greater length.

Here's some discussion of statutory interpretation that I have seen applied to confusing covenant situations as well: https://en.wikipedia.org/wiki/Statutory_interpretation . Granted there are some caveats from HOA case law with regard to interpreting covenants. E.g. if a covenant is ambiguous, then the courts will err on the side of 'free enjoyment of property.' But I do not think this caveat applies in your situation.

For your situation, I am not so sure the wording is clear and logical. Maybe the authors of the covenants did make an unintentional mistake? I am curious why this distinction between the two buildings' roofs was made. Do all owners pay the same rate for the assessment (based, say, on square footage owned)? Or per chance are the assessment rates different for building 1 owners vs. building 2 owners? Is building 1 a one story building whereas building 2 is a multi-level building? Is there any reason of which you know for this distinction between the two roofs?

One thing we have not talked about is liability issues. Is there insurance on the common elements for the two buildings? And the insurance will cover, say, a failed roof on building 2 (and all the damage the failure causes) but not on building 1 (and all the damage the failure causes)? If so, this is getting weird. You all might want to see about amending your Declaration.

I wrote the below a while ago, but forgot to post it:

I agree with Augustine given what's been written here so far."...as a director I would do what the Declaration says: Assess the cost of an explicit common element to all owners, since this is the 'contract' on which all agreed when they bought."

In our twin tower high rises, 80% of our residential owners are assessed more that the street level townhomes. The main reason is that the Towers have common area corridor & wall coverings & carpeting that the other Owners don't have. "The Towers" are, in our CC&Rs, a "Special Benefit Area."

Based on some advice from Augustine previously, I was able to "see" our covenants differently especially noting intention and context. Now, his "free enjoyment of property" does matter a lot in our case.

I don't know about VA, William, but in CA, a lengthy document called a Condominium Plan must be filed with the state by the developer. Ours was done in '01 and I've studied it. Our towers were built in phases, with one being finished a few months before the other. Might be worth a look in your case.

However it is also stated in the bylaws The total amount of the estimated funds required from assessments for the operation of the property set forth in the budget adopted by the Board of Directors shall be assessed against each unit owner in proportion to such unit owner's respective common element interest. This seems pretty clear.

Im good with the thoughts. it is what it is. However on a sort of other subject

Based on- "the total amount of the estimated funds required from assessments for the operation of the property set forth in the budget adopted by the Board of Directors shall be assessed against each unit owner in proportion to such unit owner's respective common element interest"

If an 8% portion of the paved common element areas are declared as a Limited Common Element to one unit owner who holds a 10% common element interest, would the statement above still work?

How about if that same owner only had a 6% common element interest?

See any issues?

I am kind of hamstrung without seeing the entire Declaration with all its definitions. I suspect it still works. First, what is the basis for the computation of each owner's respective 'common element interest'? I am betting it is square feet of living (or office) space. If so, this means the LCE percentage is not relevant. For example, I have seen condos where units have the exact same square feet of living space. These units pay the exact same assessment. But the square footage of these same units' LCE patios differs by a great deal. Some patios are around 30% larger than other patios. Is there an adjustment based on the different size of the LCE patios? No. The owners pay based on their square footage of living space. The LCE patio size is irrelevant.

Back to your roofs. I am glad Kerry posted the info about her condo above. Her condo's approach, on this matter a bit like your condo's, is rational to me. By contrast, so far I do not see a rational explanation for why your Building 2's roof is a common element but Building 1's roof is assigned to the individual owners. I feel like I must be missing something. Some of the Virginians here may yet weigh in.

I am not an attorney. If you want, feel free to send your docs to [email protected] along with questions you have. I'll share my opinion and then respond to your rebuttals. As a refugee from corporate America who is reasonably well off, I am happily compensated via learning something new.