Common Element vs Limited Common Element

It's very likely that your governing documents define the terms Common Element and Limited Common Element and state what structures fall into each category. The governing documents should also state who is responsible for maintaining the structures in these categories. In some, the owners are responsible for maintaining the Limited Common Elements, and in others the association is responsible for these items.

This is not something that the board can simply change. It would require an amendment to your governing documents that is approved by a majority of the membership. This percentage will also be defined. Amendments often require approval of a super-majority (67% or 75%) - and some amendments may even require unanimous approval.

Say, JohnM, what is the wording in the governing docs --please name the document-- about which unit/lots may exclusively use the slips, i.e., are individual slips actually deeded to certain lots? Or does any lot owner get permission from the Board to have exclusive use of a slip?

If an owners is granted exclusive use of a certain slip, and they decide they don't eat to use it anymore, what happens to the slip? May the owner sell it? Or rent it out?

Thanks for the feedback, all -- very helpful!! There are 268 lots in the HOA, some vacant and some with homes. There are 96 boat slips, which are assigned to specific lots and pass with those same lots. They could be separately sold and assigned to another lot, but that rarely occurs. All the boat slips are accounted for and there are not enough for each lot or for each owner who may want one. The boat slip owners pay an additional annual due beyond the HOA dues. The CC&R is not specific enough about limited common elements or their maintenance. State law is very specific and holds that an element that is for the exclusive use of fewer than all of the lots is a limited common element and those owners are responsible for maintenance. What is proposed is that the boat slips themselves will remain the exclusive use of the owner to which it was deeded. The docks, bulkhead, boat ramps etc. would be available to those non boat slip owners who pay an annual fee to join the marina, but they will not have the use of a boat slip. The common element to which the docks are attached, which is 2.24 acres, has always been available to all of the owners to view the marina, picnic, etc. What is proposed (and what has informally going on) would be a mix of uses and responsibilities, with the CC&R and state law involved. You are right -- the Board does not want to police this, but the community has a good idea of who has paid for what and self polices fairly well. I hope that explains the situation better and welcome further commentary.

Thanks for the details, JohnM, which raise more questions & comments.

Slip owners pay extra for their ownership of the slips. What does that extra fee cover? Is it written in any governing document like your CC&Rs or an Exhibit to them? Are they ONLY, in other words, contributing to the maintenance of the bulkhead, the ramp(s), the docks? Are they ONLY, and this is very important, contributing into reserves for the repair & replacement of these items??

Related to reserves how ARE the various components of the docks listed in the HOA's reserve study?? To "help," you must review this HOA's reserve study. If so, how do you know which owners are contributing to the repair & replacement of these components, docs, ramps, bulkhead. Is it possible that all owners already contribute to reserves for these via their dues ? Is it true that any resident may use, for example the boat ramp?

Please respond to: do the slip owners pay some sort of separate insurance for the docks, ramps, bulkhead? Or are these a part of the overall HOA common area insurance policy towards which all Owners pay via their dues?

In the operating budget, too, as with insurance, is water and electricity. Is each, which they might have to service docks or slips, simply part of the entire water or electric bill towards which all Owners contribute? Or do somehow,slip owners pay a fraction of those utilities?

While I don't know the answers to these questions, if all Owner already are paying for many of the expenses that support the slips, all owners may use the docks. If there are cleats on the docks, any owner may tie a boat up to them. If each slip has a built-in "dock box," slip owners would pay for their eventual repair replacements since no other owners may use them.

I think it might be that the language of limited use common area throws a monkey wrench into this topic. To me, whatever slip owners get to exclusively use and for which they exclusively pay to insure, maintain & into reserves for is their limited use common area. Everything to which all owners contribute via insurance, reserves or operating budget is common area. All owners pay whether or not they ever use them

(Btw, our condo high rise has limited use underground-garage deeded parking spaces, which owners must keep clean, but which the HOA stripes, and deeded storage cages for which owners are responsible except for the wooden- slat doors doors to them. The HOA has plenty of rules about both..)

Our opinions don't matter. It's whatever your CC&Rs say that they are. If your CC&Rs are vague or silent, then your community may have the option of clarifying this via amendment to the CC&Rs and may (possibly maybe) classify them according to whatever makes them easier to administer.

But you should consult your HOA's attorney - and if you don't have one, find one, because an attorney will be needed to write any amendments that are needed. If you don't go the legal route and just decide you're gonna do whatever you think should happen, you'll open yourselves up to legal challenge by unhappy owners. And it sounds like this issue is already prone to squabbles.

With Cathy & Elle, JohnM, your $10,000 question for a few reasons cannot be even partially or tentatively responded to until it's known WHO is NOW paying for what elements or components of this dock, slips and contiguous areas, e.g., ramp(s), bulkhead? Those answer should in the governing documents.

It seems impossible that the docks, which in any HOA would be listed in the reserves study, "is in limbo." By that, you mean there is no mention of it in the reserve study or operating budget?

The people whom you're helping should show you the financials. By reviewing the operational budget, you'll see if any group, i.e., slip owners is solely paying for ANYthing. If so, WHAT are they paying for? You claim slip owners are paying "extra." For WHAT elements?

The owners also should provide you a copy of the reserve study. Review it. IS there anything listed in it to which ONLY the slip owners are contributing? If slip owners ARE contributing to the repair/replacement of the slips and even the docks, there IS a line item in the operating budget showing their contribution to reserves.

As someone who's helping this HOA, or certain ppl in it, please read their CC&Rs and Rules & Regs and Articles of Incorporation. Possibly the Bylaws would help.

They most certainly will need the opinion of an HOA attorney about this whole topic. To mean the least import part is the names to call each area. I have a hunch (at which I'm not very good) that all owners arealrady paying for certain elements that slip owners want to keep to themselves.

Section 47F-3-115(c) provides:

(c) To the extent required by the declaration:

(1) Any common expense associated with the maintenance, repair, or
replacement of a limited common element shall be assessed against the lots
to which that limited common element is assigned, equally, or in any other
proportion that the declaration provides;

(2) Any common expense or portion thereof benefiting fewer than all of the lots
shall be assessed exclusively against the lots benefitted; and

(3) The costs of insurance shall be assessed in proportion to risk and the costs of
utilities shall be assessed in proportion to usage.

(c)(2) is directed specifically to limited common elements.

I'm seeing about the same thing JohnC, and as a sailor and boat owner (always with partners!!) for many years, with a slip in the (CA) Santa Cruz Small Craft Harbor, there might be a dock with slips off of either side of it. This would be like a back-to back E, with several extensions, i.e, there might. 20 or more slips off of a dock.

Based on JohnM's citation, slip owners should pay for all monthly operational expenses for the slips including insurance and into reserves for eventual repair/replacement. So long as all slip owners do that, I'd say those slips are their limited common elements. No other owners may hav access to them

The question in my mind, as noted above is: What about the docks and other appurtenant items, like the ramp(s), etc. I'd think that unless there are gates* to the docks, that they'd all be accessible to all owners. They would be common area and all owners would pay for the repair/replacement into reserves, for the insurance on these items, etc.

I think many HOA have common area amenities that are not used by every owner. I currently don't use the billiards room, locker room, or swimming pool. Many owner don't use the ill-equipped gym. But we all pay for this use.

*If there are gates to the docks that only slip owners may access, they, of course, would be insured, reserved for, etc. by slip owners.

A big THANK YOU! I did miss this particular citation because it is in the Planned Community Act whereas I was looking in the Condominium Act but found it similarly worded there based on your citation. In our case, the board announced plans to install 60 large sheds in the common area under the buildings and either rent or sell them to owners. Only about 60% of the owners would have benefited, it clearly changed common area to limited common areas BUT our association dues would still pay for the maintenance, repair, replacement, personal property taxes, clean up of these limited common sheds. The town declared the sheds violated zoning, building and fire codes, it violated our by-laws and state statutes regarding conversion of common to limited and now I have evidence that the board's plan to make the rest of us pay for other owners' sheds was also illegal.

The law says "To the extent required by the declaration:".

So this law does not apply to your community unless your declaration spells out the limited common elements and their maintenance and costs. The law has guidelines, but it has to be "required" (or stated), and to what "extent" by your declaration. By itself, this law does not hold that these owners must pay for their limited common elements.

You stated that your CC&Rs are "not specific enough." Can you quote your CC&Rs in relation to the docks and boat slips, as well as any general language about assessing maintenance costs?

I think this law is typical of state laws that defer to the CC&Rs for issues like this, which gives communities needed flexibility and does not force a one-size-fits-all law.