Limited Common Elements Not in CC&Rs

Typically, the order of precedence for HOAs are:

Federal Laws
Federal Regulations
State Laws
State Regulations
County Codes
City Ordinances
Deed Restrictions (aka CC&Rs, Covenants,etc.)
Articles of Incorporation
Bylaws
Board Resolutions

If any of the lower documents conflict with a higher document, the higher document must be complied with (aka Controls) unless language in the higher document defers control to the lower document.

The statute defers control to the CC&Rs.

However, since you said the CC&Rs were silent on duct work, I suspect the statute would apply.

You will need an attorney if you are going to challenge the issue in court.
Depending on the cost, you may want to pick your battles.

Agree, this appears to be an unwinnable battle. Management states the CC&Rs don't need inclusion of "limited common elements" as this is State Statute, and CC&Rs do not need to include this description. (I disagree) For example, if all 249 Units were to benefit from an expense, it would need to be an expense of the parking lot, lobby, swimming pool or dining room. In contrast, if a given hallway or laundry room equipment was upgraded - common elements, yet only some Units benefitted, would/should those units bear the cost? This becomes an issue that can be parsed down infinitely. We need an HOA that makes all members feel valued.
Thanks for your response.

Thank you. The governing documents do not discuss this issue. Of course we will pay this, but if every condo stack has waste / sewer pipes that serve their stack until they connect to the sewer main, owners should know this. As of now, they /we are not aware until after the fact; there is a lack of transparency in our governing docs.

It sounds like the limited common elements are defined by what they're not: not part of the unit and not part of the common elements that serve more than one unit.

As others have mentioned, condo owners are often responsible for things like this. You might want to have a talk with your insurance agent about this, because your HO6 policy may cover repairs costs It's why the agent asked for a copy of your CC&Rs when putting together your policy - you don't want items like this falling though the cracks and being uninsured.

As far as "transparency" goes, condo structures are often a "black box" to everyone, including the board and property manager. CC&Rs can also have portions that are not well written, as with this case where the limited common elements are not explicitly defined. FWIW, I work for the builder/developer of my condo community. I've been inside all of the floor plans and inside most of the individual units while they were under construction. But I'm the only one who knows this stuff. Worse, I'm the only one who knows that I know it - so board members won't ask me if questions arise that I can answer. Transparency without essential information just means everyone is clueless together. So periodically they hire some pros to re-invent the wheel and we pay for the privilege.

Thank you Cathy for your input. Our HO6 policy does not cover sewer pipe repairs or maintenance, per our agent. I need to access the plumbing portion of the blueprints in order to know what we are personally responsible for. It is unreasonable to not be transparent with owners.

I looked through all the closing documents from the title co. and do not find the CC&Rs. We received them in a large binder with many rules, regulations, and community policy, but not before closing.

Arizona statute 13-1260 requires that the Declaration be provided before closing. Typically the paperwork a buyer signs before closing indicates that the buyer has received a copy of the Declaration and has no objections. If you cannot find this paperwork, ask your real estate agent or the title company if it is in fact there.

Even if the Declaration is not present, it's almost guaranteed that the Declaration is recorded with the county clerk. The courts say this recording with the county is proof you had "notice."

You contend the association was not transparent. But if you did in fact have "notice" of the Declaration, then according to the courts, you knew that things might be "cloudy" (and lead to dispute) insofar as who owns what is concerned. You had the opportunity not to purchase because of this cloudiness. I know getting into the weeds of what the CC&Rs say, before a sale is completed, is a tall order. But it is in fact what the courts expect when disputes like this arise.

On the positive side, covenants (meaning CC&Rs and the Declaration) are contractual terms. Where a covenant is vague and ambiguous, the covenant is interpreted against the association.

On the third hand, the question that arises in these situations is how much money you want to spend on an attorney to try to make things right. There's no guarantee that the attorney will be successful here.

ElleN, interesting response. My file of the purchase of our condo contains HOA information from our community, but not the HOA for our condo assn.- an HOA within an HOA. I have learned all the plumbing stacks related to bathroom fixtures are also considered "limited common elements" by the maintenance dept. therefore all wastewater stacks located in these chutes that contain utilities, and serve less than the 249 total condos, are the responsibility of the Units connected to them. For example, the persons in one condo disposing of items in the pipes that cause a clog would incur an expense to their neighbors. The CC&Rs discuss, in part, Common Elements, unit boundaries and what is referred to as chutes, utilities, etc. is considered common elements, as I read it. I will pay the plumbing bill, however, this is a gray area that should be clearly stated of who owns or maintains what. Interesting discussion.

I think that the person who will be the most frustrated with condo ownership is someone with a construction background who has spent many years on the board but is not currently a board member.

If you're not on the board, you won't have the authority to tell them what to do. And boards' receptiveness to outside information will vary widely. FWIW I agree with them relying on their hired pros to provide the info they use to make a decision. If something goes wrong, relying on the experts is defensible. Relying on a homeowner who is an unknown quantity *and who can't be held accountable if their info is bad* is not defensible, no matter how knowledgeable that homeowner may be. When I was on the board, I listened to what owners had to say about something, but their info was never a deciding factor in my vote - at best it may have suggested questions that needed to be asked of the pros.

I get it. I have to bite my tongue when the board in my community does something that's clearly wrong (eg. not adhering to our CC&Rs or bylaws). But I figure I have a choice: get elected to the board again, zip lip, or move. Zipping lip is by far the easiest as long as the board isn't doing something so outrageous that we're flirting with a lawsuit.

And some of this is just condo ownership in general. Ask me how I felt being out of pocket several thousand dollars when a pinhole-sized leak in the plumbing of the unit above my next door neighbor resulted in mold in both the downstairs units.

Thats not my understanding of how condo insurance works, at least in my state. It might vary. Mold from an external source like a pinhole leak somewhere else is covered by your insurance, to the extent that it is insured. Thats also how it worked when I owned a house and a neighbor’s tree fell and damaged three houses including mine.

Interesting experience, Cathy. I am curious why your neighbor's insurance did not cover your damage as well as how your insurance came into play? With my situation, no equipment was purchased as the outside plumber did not replace anything, he only cleared a partial clog above our condo, then down to where the pipe joins a main waste pipe. I had a printing job done for my nonprofit which is well described on the statement.

Cathy, that makes more sense RE: the pinhole leak. My Association has many issues and the "limited common elements" is just one of several. I hope we are insured enough and have added to our HO6 policy insurance in case we're hit with a special assessment, AND if we cause the blanket insurance to trigger, if so, we pay the $25K blanket policy deductible per incident. We have a very opaque association.

Regarding the Assn. master policy, it covers common element costs, however, a loss caused by water that is attributable to one Unit, the Unit's insurance policy would cover the cost of damage to the common element. IF the master policy is triggered, the Unit owner is responsible for a $25K deductible. We carry insurance to cover that possibility if our insurance does not repair the damage on top of our coverage for our damage and to others' property.

While we are discussing HOA insurance, is it true only one company covers HOAs with transportation, a dining room, nursing services, and other areas? Curious.

AZ condo law "33.1202 Definitions

...7. "Common elements" means all portions of a condominium other than the units.

...17. "Limited common element" means a portion of the common elements specifically designated as a limited common element in the declaration and allocated by the declaration or by operation of section 33-1212, paragraph 2 or 4 for the exclusive use of one or more but fewer than all of the units."

As I understand it, the drain pipe is not in your unit and is not stated as a limited common element in your Declaration. This means that the drain pipe does not fit the definition under the law, and it is not a limited common element in your documents.

You quoted 33-1212, which does not apply to the common drain.

The fact that the maintenance people or the exec director call it a limited common element is called making things up.

I think the only remaining consideration is if the blockage could only be attributed to certain other units. If the Declaration speaks of how damage caused by an owner (or owners) may be assessed back to this owner (or owners), then I think the association is either on pretty good ground to bill the owners of the units in questions, or the grounds for the affected owners fighting this are weak.

Condo living is close quarter living. Plus as people here have touched upon, amateurs (like those on HOA and condo boards) interpreting covenants is a nightmare defined.

Laurel, I agree that this standpipe/waste pipe is common elements (not LCE). The problem is that the association almost undoubtedly has the right to assess the owner who caused damage to common elements for the cost of the repairs. If you feel your unit could not possibly be responsible for the blockage, then this is what you could in theory argue to the board.

My point is that the board does have grounds to assess less than all units for the repairs here.

I'm not sure how much a change in the declaration will prevent stuff like this from happening in the future. It sounds like a combination of building design, irresponsible/ignorant residents, and a board/management that aren't totally on top of things - normal condo living, in other words.

In situations where the board and/or manager are making things up as they go along, you're left with deciding what you're going to do about it. All condo/HOA issues have three possible solutions: live with it, fix it, or move. Every situation is different, every condo owner will assess things differently on their personal circumstances. What's right for you won't be right for someone else.

Some things shouldn't be lived with (eg. a board member is embezzling), other things will be a judgement call based on your tolerance level and how much the whatever-it-is impacts your life..

Fixing it usually boils down to getting yourself elected to the board so that you can help make better decisions or else taking legal action to force change. For the first you'll need allies who see things your way and the time to devote to being a director - it's hard work, often unrewarding, and you'll need a thick skin. For the second, you'll need money and patience. For both, the outcomes will be uncertain - is it worth going all in if you fail to accomplish what you want? Something to be considered.

Moving is an option unless your community is uniquely wonderful or your circumstances force you to live there.

Long story short, there will always be something to annoy you in condo living if you look hard enough (and even when you're not looking at all). People are imperfect, they can do bone-headed things, and you'll be much more aware of these things when you live on top of each other. 'Tis the nature of the beast.

Management is very controlling. He decides who can be chosen for commThe exec. director controls everything. This was to be our last home, but we had never expected to have our lives micromanaged. We have a board election soon, 2 openings, and he has determined who the 2 candidates are. The nominations committee was not to solicit or encourage persons to put their names in, and he announced who the candidates are. Why vote?!

I am aware, although I base this on Laurel's descriptions of what's going on. We usually take OPs at their word for the sake of discussion, knowing that we're just getting a glimpse of what's going on and that additional details could change the picture.

"Making things up" seems a fair description since the manager appears to control things and is acting in ways that appear contrary to the Declaration/bylaws and normal practices in condos. The manager determines who the board candidates are??! And why is the board not pushing back? Are they OK with this, or has the manager browbeaten them into submission?

Misinterpreting the governing docs is less alarming to me than what seems to be going on here: the manager taking on the role and authority of the board. No matter how experienced the manager and how inexperienced or incapable the board may be, it sounds like the manager is outside his lane.

Is it possible that the manager is just acting as the board's mouthpiece and the board is actually making all of the decisions? Sure. That could look the same to homeowners who aren't privy to the details. But that still doesn't explain why the manager would discourage some owners from running for the board. Even assuming I could be interpreting things wrong, I'd still be concerned enough about this to want answers.

I have not read this whole thread carefully. So...are the community manager and the "executive director" the same person? If not, is the latter a board member? How many are on the board? Board meetings are open in AZ. Do you attend? Do you participate? Does the Manager do all the talking? Don't board members make motions, etc.?

My HOA is a high rise, 25 stories, and there are five kitchen drain lines, i.e, there are 5 units per floor. So no drain line serves all 200+ units of my HOA. But they are common area lines, not limited use lines ("exclusive use common area" in CA). If there is a clog, the entire HOA pays to repair it. IF it can be determined that it was caused by a particular unit, which often is impossible, that Owner's insurance would pay for the repair and the damage to other units, loss of use, etc., or to the common area.

We have 200+ garbage disposals. We've had maybe 3 clogs in the past seven years. We are surrounded in my urban 'hood by numerous high rise condo buildings. None have had their disposals removed.

KerryL1: "I have not read this whole thread carefully. So...are the community manager and the "executive director" the same person? If not, is the latter a board member? How many are on the board? Board meetings are open in AZ. Do you attend? Do you participate? Does the Manager do all the talking? Don't board members make motions, etc.?" Contained in the CC&Rs: "All powers, duties and rights of the Association, as provided by law and herein, may be delegated by the Board of Directors to a managing agent under a management agreement; provided, however, that no such delegation may relieve the Association of its agreement for professional management or other professional service contracts shall not exceed five (5) years; unless the Board of Directors determines that a savings accruing by virtue of having a contract for a longer period is warranted." Hearsay says the ED insisted on this addition to the CC&Rs and interpreted as the ED having equal say in decision-making.

The Executive Director is the only "manager, exec. director. I do participate in meetings, however, attendees are only allowed 3 min. to speak. Previously the Board had 7 members, it was cut down to 5 due to not enough owners "qualifying" as candidates. The average age of this community is 87 yrs. old. Meeting agendas are written by the Exec. director (ED) or his assistant. Board members make motions, and 3 of the 5 always agree with the (ED not an owner, but an employee.)

CathyA: You stated, " Misinterpreting the governing docs is less alarming to me than what seems to be going on here: the manager taking on the role and authority of the board. No matter how experienced the manager and how inexperienced or incapable the board may be, it sounds like the manager is outside his lane.

Is it possible that the manager is just acting as the board's mouthpiece and the board is actually making all of the decisions? Sure. That could look the same to homeowners who aren't privy to the details. But that still doesn't explain why the manager would discourage some owners from running for the board. Even assuming I could be interpreting things wrong, I'd still be concerned enough about this to want answers."

The Executive Director (ED) is the same as community manager, this is a nonprofit Association. The BOD has some very capable members, if you read my response to KerryL1, the BOD is led to believe the ED has the same powers as the Board. The Nominations Committee was not to solicit persons to run for the Board, persons interested were to leave their names and CV in a drop box for the ED. The Nominations Committee was given specific directions.

I am familiar with the contractual language, the governing docs, or CC&Rs, describes Units, Common Elements etc. most owners understand the docs.

The original CC&Rs stated the Assn. would insure all Common Elements and Units, with a water damage loss an owner's personal insurance covered her Unit damage, but that of the units below as the CC&Rs stated the Assn. insured all Units. The personal insurance co. was correct, the Assn. insurance had to cover damage to the other Units, which led the ED to include an update to CC&Rs that all owners should carry their own insurance and name the Assn. as an "Additional Insured." I met with the ED, Assn. Pres. & Treas. to discuss the difference between insured and interest, since the Assn. has a need to know if we are insured, thus "Additional Interest" seems better language than "Additional Insured," the 3 of them agreed that needed to change with the ED promising to change Insured to Interest --- AFTER it was approved. I was told to talk to "my people" to make sure this passed. I voted NO as that would require another membership vote. He knew I voted NO, and he told a Board member, who is being groomed to be our new Pres. how I voted.

More positive news is that more members are attending BOD meetings, one a retired attorney, another an executive with a sports team and very familiar with HOAs, and many others who realize they need to attend and speak up!! I say yes, we cannot just complain, we need to stand up and be heard, in a respective manner, even when the ED interrupts us, we are still given 3 minutes to speak.

I would ask the President, who lawfully presides, to instruct the ED to stop interrupting and using up my time.

If I got on this board, the first motion I would make is to change the title of this "ED" to "manager." Next I would be looking to terminate the guy's contract. He's way too incompetent. He's taking too many risks as he violates covenants.

Kerry, I am homed in on the phrase "delegated by the Board of Directors" above. By my reading the directors still have the final say on everything (except those items expressly requiring an owners' vote). I think the lines above are fine and may very well be a part of the original language of the covenants.

The problem is how the covenant is being interpreted, by both the board and this idiot manager.