Repair for limited common element. Who pays?

SunnyD (Pennsylvania)
Posts: 10

Posted:

I live in a three-unit condo building. The three units are stacked vertically. According to our plats and plans, the only common area is the hallway. This hallway leads to unit 2 and unit 3. Unit 1 has an exterior entrance.

Although the roof is typically a common element, according to our declaration, the roof is a limited common element. In our declaration, maintenance of limited common elements is assigned to the unit for which the element is appurtenant. For limited common elements, the HOA can make repairs and pass the expense(s) onto the appropriate owner.

In the plats and plans, the boundaries indicate the roof is a part of unit 3 and only unit 3 can give access to the roof. Previously, all 3 units paid their share to replace the entire roof after unit 3 complained of leaks. We all assumed that because the roof covers the entire building, we should pay our respective percentages for the repair. Should we (unit 1 and unit 2) have paid for this repair?

CathyA3 (Ohio)
Posts: 6,299

Posted:

Your declaration is weird, IMHO. I've never seen roofs in a stacked condo building defined as limited common elements belonging to the top floor unit. I'm trying to visualize some structural constraint that would require something like this, and I'm coming up blank. Out of curiosity, does the third floor owner have to pay a larger assessment? And what about the ground floor unit - is that owner responsible for the foundation?

It may be worth double-checking your declaration, because in some communities limited common elements are the responsibility of the association and not of the homeowner with the adjacent unit. There also may be some qualifying language in yours, such as "unless specified elsewhere", and the "elsewhere" describes an exception to having the top floor unit owner pay for roofing repairs.

If you've already done all of that and the Declaration really says that the top floor owner pays for the roof, no exceptions, then legally that's what has to happen. But I can see why your community thinks this doesn't make sense. Usually when a community has some unworkable requirements in their governing documents, they amend them. But this is a legal process that requires the involvement of a lawyer, and that can be a significant expense for such a small association.

Maybe someone else will have some bright ideas, including a way to get legal work done in an affordable way.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

This is just personal opinion but I think all 3 units should share the cost. A roof in poor condition can effect the re-sale value for all of you. Also, a leaky roof can lead to water running down the exterior walls that all of you share. In addition, do you really want one owner deciding when the roof should be replaced? What of they are a tight wad and don't want to pay for it?

Do your governing documents outline the requirements to modify them?

SunnyD (Pennsylvania)
Posts: 10

Posted:

The top floor unit pays a larger assessment. The ground floor unit is solely responsible for the foundation. I've read the declaration a number of times and have not seen any exceptions. Indeed, an attorney would be way too expensive for our association.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By SunnyD on 06/08/2021 2:47 PM
The top floor unit pays a larger assessment. The ground floor unit is solely responsible for the foundation. I've read the declaration a number of times and have not seen any exceptions. Indeed, an attorney would be way too expensive for our association.

Not as expensive as paying for a new roof or foundation fix. Also does the
middle unit skate?

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By SunnyD on 06/08/2021 2:47 PM
The top floor unit pays a larger assessment. The ground floor unit is solely responsible for the foundation. I've read the declaration a number of times and have not seen any exceptions. Indeed, an attorney would be way too expensive for our association.

Strange. So they pay a larger assessment and yet they pay for the roof?

SunnyD (Pennsylvania)
Posts: 10

Posted:

In our declaration, the HOA can repair common and limited elements as they see fit and pass the expense onto the owner. This is supposed to prevent scenarios where the owner is a tightwad.

To modify this rule we'd have to hire an attorney. Currently our reserves are at 500 dollars... :/

SunnyD (Pennsylvania)
Posts: 10

Posted:

The assessment is percentage based. Since their unit has more square footage, they pay a larger portion of the assessment.

SunnyD (Pennsylvania)
Posts: 10

Posted:

Quote:

Posted By CathyA3 on 06/08/2021 2:28 PM
Your declaration is weird, IMHO. I've never seen roofs in a stacked condo building defined as limited common elements belonging to the top floor unit. I'm trying to visualize some structural constraint that would require something like this, and I'm coming up blank. Out of curiosity, does the third floor owner have to pay a larger assessment? And what about the ground floor unit - is that owner responsible for the foundation?

It may be worth double-checking your declaration, because in some communities limited common elements are the responsibility of the association and not of the homeowner with the adjacent unit. There also may be some qualifying language in yours, such as "unless specified elsewhere", and the "elsewhere" describes an exception to having the top floor unit owner pay for roofing repairs.

If you've already done all of that and the Declaration really says that the top floor owner pays for the roof, no exceptions, then legally that's what has to happen. But I can see why your community thinks this doesn't make sense. Usually when a community has some unworkable requirements in their governing documents, they amend them. But this is a legal process that requires the involvement of a lawyer, and that can be a significant expense for such a small association.

Maybe someone else will have some bright ideas, including a way to get legal work done in an affordable way.

I should have quoted you. There are no exceptions in the documentation. In fact there are areas in our rules and regulations where the maintenance responsibilities for limited common elements are reinforced. Because roof repairs are expensive, this is an area that most residents do not want reworked.

SunnyD (Pennsylvania)
Posts: 10

Posted:

I should have quoted you earlier so I'll respond here to all of your inquiries.

The HOA has the right to repair any limited common element and pass the expense on to the relevant owner. So if there is a structural repair that will impact value or safety of the building the HOA can step in and make the repair. This is supposed to prevent situations where someone is a tightwad. Unit 3 pays a larger portion of the special assessment. Special assessments would only apply to the common area. The only common area we share is the hallways. So yes Unit 3 would pay their share for hallway repairs and is supposed to pay for roof repairs.

An attorney would be best but there is resistance to hire an attorney when some feel the CC and Rs / Plats and plans are clear. Also we have no money in reserves

SunnyD (Pennsylvania)
Posts: 10

Posted:

Quote:

Posted By SunnyD on 06/08/2021 3:02 PM
In our declaration, the HOA can repair common and limited elements as they see fit and pass the expense onto the owner. This is supposed to prevent scenarios where the owner is a tightwad.

To modify this rule we'd have to hire an attorney. Currently our reserves are at 500 dollars... :/

I should have quoted you earlier so I'll respond here to all of your inquiries.

The HOA has the right to repair any limited common element and pass the expense on to the relevant owner. So if there is a structural repair that will impact value or safety of the building the HOA can step in and make the repair. This is supposed to prevent situations where someone is a tightwad. Unit 3 pays a larger portion of the special assessment. Special assessments would only apply to the common area. The only common area we share is the hallways. So yes Unit 3 would pay their share for hallway repairs and is supposed to pay for roof repairs.

An attorney would be best but there is resistance to hire an attorney when some feel the CC and Rs / Plats and plans are clear. Also we have no money in reserves Smile

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By SunnyD on 06/08/2021 3:35 PM

... snip ...

An attorney would be best but there is resistance to hire an attorney when some feel the CC and Rs / Plats and plans are clear. Also we have no money in reserves Smile

I agree that the CC&Rs are clear. It's just that I haven't seen things done this way in stacked condos, only with townhome-style shared wall attached homes. I guess you could make the case that the first floor and third floor units are most affected by issues in the foundation and the roof and benefit the most when they're maintained properly. And doing things this way eliminates the case where the roof is leaking, for instance, and the other two owners vote No on repairs. Come to think of it, this may have been the reasoning...

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Sunny,

All three units should share in the roof repair expense if that's how such repair bills are assigned. Of course, the third floor condo would be the only unit that can offer attic and roof access so that's not a reason to suggest all repairs fall on the top-floor condo.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Sunny

My initial blush is the 3 units in each building should be splitting
all building expenses. I can agree with dues being different based on unit size.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By JohnC46 on 06/09/2021 8:01 AM
Sunny

My initial blush is the 3 units in each building should be splitting
all building expenses. I can agree with dues being different based on unit size.

That's certainly the norm. But according to what Sunny says, her CC&Rs are clear that the roof and the foundation are limited common elements and are the responsibility of the owners of the adjacent units.

It's not like any other stacked condo community I've come across.

The only justification I could come up with is the fact that, with a 3-unit condo, if the roof (and foundation) were common elements, the two unaffected owners had veto power on whether or not repairs were done for a leaking roof, for instance. That's not workable or fair to the owners of the first and third floor units. If I owned one of those units, I'd prefer to have control over repairs that affect me directly, even if it means paying for them myself.

SunnyD (Pennsylvania)
Posts: 10

Posted:

Quote:

Posted By CathyA3 on 06/09/2021 8:59 AM

Posted By JohnC46 on 06/09/2021 8:01 AM
Sunny

My initial blush is the 3 units in each building should be splitting
all building expenses. I can agree with dues being different based on unit size.

That's certainly the norm. But according to what Sunny says, her CC&Rs are clear that the roof and the foundation are limited common elements and are the responsibility of the owners of the adjacent units.

It's not like any other stacked condo community I've come across.

The only justification I could come up with is the fact that, with a 3-unit condo, if the roof (and foundation) were common elements, the two unaffected owners had veto power on whether or not repairs were done for a leaking roof, for instance. That's not workable or fair to the owners of the first and third floor units. If I owned one of those units, I'd prefer to have control over repairs that affect me directly, even if it means paying for them myself.

Good point Cathy. As I check the language of our declaration, I think you have the right idea. The rules are designed to give each unit control over repairs that will directly impact their unit. If a homeowner is negligent or in the case of an emergency, the HOA can step in, make the repair and pass the cost on as a limited expense.