“Limited Common Elements: What Are They and Who Is Responsible?,” FCAP Managers Report

“Limited Common Elements: What Are They and Who Is Responsible?,” FCAP Managers Report

Condominiums generally consist of the following two components: 1) the units that are subject to exclusive ownership by one or more persons, and 2) the common elements, which are any areas not included within the unit boundaries. Unit owners, in addition to the exclusive ownership of their units, also own an undivided share in the common elements. Commonly, the association is responsible for the maintenance, repair, and replacement of the common elements at common expense, while the unit owners are each responsible for their individual units at their own expense.

What about those areas of the condominium property that are used only by one owner or a group of owners but lie outside the boundaries of the units, such as a parking space or balcony? These may be a subset of common elements known as limited common elements, if so designated by the declaration of condominium.

The Florida Condominium Act defines limited common elements as those common elements that are reserved for the use of a certain unit or group of units, as specified in the declaration of the condominium. This definition indicates that the limited common elements are a subset of the common elements. See Gary A. Poliakoff, Law of Condominium Operations §4:65 (“[A]lthough all limited common elements are common elements, not all common elements are limited.”). Unlike the common elements, the limited common elements are restricted to the use of one or a few unit owners. The right to use limited common elements is appurtenant to one unit or group of units, meaning that the right to use the limited common elements is tied directly to that unit or units’ ownership. Common examples include parking spaces, storage units, balconies, or patios. There are also less obvious elements external to the unit boundaries, but serving exclusively one unit owner or group of owners, such as plumbing lines or air-conditioning units, that may be limited common elements. The key component in making the determination as to whether something is a limited common element stems from the Condominium Act definition, which provides that the designation of these common elements as “limited” common elements is entirely dependent on the language of the declaration.

If the limited common elements are a subset of the common elements, does this mean the association is responsible for their maintenance, replacement, and repair? Sometimes, but not always.

The Florida Condominium Act states that the association is responsible for maintaining the common elements, which includes the limited common elements. This is logical, if all limited common elements are common elements, it follows that the association is responsible for the maintenance, repair, and replacement thereof at common expense. If the declaration is silent, maintenance of the limited common elements is an association responsibility, as a “common expense,” meaning all owners share the cost. This may sometimes seem unfair or surprising to condominium unit owners in that they are paying for the maintenance, repair, and replacement of condominium property that they are not permitted to use, such as the neighbor’s balcony. The law allows the declaration to delegate maintenance responsibility for limited common elements to the benefiting owner(s), or to the association but at the expense of the benefitting owner(s).

The Florida Condominium Act provides that the declaration can require that the limited common elements be maintained by the individual unit owners who benefit from the exclusive use of the limited common elements. Again, declaration language is key to this responsibility allocation. The maintenance responsibility delegation to the unit owners can also be accompanied by a provision that this maintenance is at the expense of the benefitting owners, rather than at common expense. Even if the association does maintain the limited common elements, it may be able to allocate the costs of the maintenance to those owners entitled to use the limited common elements in question. Again, the declaration needs to provide that the costs of the maintenance is the responsibility of the unit to which the limited common element is assigned. In such a case, the association can perform the required maintenance or repairs and charge the owner or owners who benefit from the use of these limited common elements.

Importantly, even if the maintenance and costs for the limited common elements are designated by the declaration as the responsibility of the unit owner, the board, nevertheless, has the right to enter and access a limited common element for necessary repairs in an emergency or after reasonable notice, in the same manner it can access a unit.

The designation of common elements as limited common elements can also be significant in determining the board’s authority to regulate or reassign these areas. For example, if parking spaces or storage units are limited common elements pursuant to the declaration, the board would not have the right to reassign the spaces or units without the permission of the owners who have exclusive rights to use the same. On the other hand, if those parking spaces or storage units are not designated as “limited” common elements by the declaration, the board may have the right to reassign the same.

Associations with ambiguous or vague documents can run into issues when it comes to distinguishing exactly who is responsible for what and determining the board’s authority over certain areas of the condominium. In the event that the declaration is unclear, it is important to discuss options with association counsel. The Condominium Act strictly limits the way an association can spend its money, which means it is important that the association understand what it is responsible for and what it is not responsible for before inappropriately spending association funds. If the association seeks to have the unit owner or group of owners who benefit from a certain common element to be responsible for the maintenance, repair, and replacement of the same, the declaration needs to both designate the area as a limited common element and allocate the responsibility to the benefitting owners. If the association prefers to handle the maintenance of certain limited common elements, but at the benefitting unit owner’s expense rather than common expense, it is also important for the declaration to provide that the association’s maintenance of the limited common elements charged to the owner(s) is secured by a lien in the same manner as the common expense assessment lien. It is best to obtain an opinion from association counsel as to the delegation of responsibilities before undertaking major repairs where the declaration is unclear or ambiguous. Association counsel can also work with the board to amend the declaration to better meet the needs of the association based on the design of the condominium property.

To read the original FCAP Managers Report article, please click here.

Karyan San Martano is a member of Becker’s Community Association practice and regularly provides legal counseling to the officers and directors, as well as the property manager, on the operation of condominiums, cooperatives, and homeowners associations. To learn more about Karyan, please click here.