Condominiums and planned communities (and cooperatives) are forms of common interest ownership and when something breaks, leaks or malfunctions, there is commonly a question as to who is responsible for fixing it. The answer to the question is “who owns it?”
The following is a discussion as to how to determine who owns it. The short answer is to read the legal governing documents (aka Declaration) of the community. If it’s not included in the unit boundaries, then it’s probably the HOA’s responsibility.
Reading the Declaration can be as much fun as reading a textbook of advanced physics and as tedious as figuring out Schrödinger’s Equation, well, for some of us. (Any physics majors out there?)
Common Interest Ownership refers to a form of ownership as part of a community whereby the unit owner owns a space within designated unit boundaries and owns an undivided interest in anything else within the boundaries of the community. Everything within the boundaries of the community is broken up into units, common elements and limited common elements.
The boundaries of a unit are specified in the declaration of the condominium. This is what the unit owner owns exclusively. The unit boundaries can vary greatly depending on the style of the unit and the whims of the developer.
Units of this style would include those in a converted apartment building or in a high-rise, also known as a vertical condominium. Vertical and horizontal planes would describe the boundaries of the unit and the owner would own that which is located within these boundaries. The exception to this would be in cases where the mechanical features, such as electricity, plumbing or heating ducts, are limited common elements (see below).
|Townhouse Style Unit|
These units typically have more than one floor and share one or two common walls with other units. This would look like a loaf of bread where the individual slices would represent separate units.
The boundaries of these units can vary from project to project but typically the vertical planes would “studs-in” and the horizontal planes would be the inside of the rafters and the basement floor. This would mean that the unit owner does not own nor is responsible for the exterior of the unit including the roof, siding, windows, front steps, deck/patio or anything that is outside of these boundaries. Limited common elements would also be excluded from ownership which could include the furnace, hot water heater, etc.
Where this can vary is if the developer sets the boundaries to include the exterior of the units. Then the unit owner could own the roof, siding and windows and even a plot of land (front or back yard or both), the parking spaces and a detached garage.
Detached or Site Condominiums
These are free-standing units that otherwise resemble single-family homes but are under a declaration of condominium. The boundaries here can vary widely as well. As with townhouse-style units, the developer can set the boundaries to include or exclude the exterior, land, porch, deck, patio, front steps, driveway and parking spaces.
Common Elements are anything else that exists within the boundaries of the community but outside of the designated unit boundaries. This can include the roads, sidewalks, open areas, wooded areas, gardens, pool, tennis court and recreational facilities. Depending on the description of the unit boundaries, common elements may also include the land adjacent to, in front of and/or in back of the units; the exterior of the buildings; the roofs of the buildings; and the designated parking spots.
Every unit owner is a member of the homeowner’s association (HOA) and every member has an undivided interest in all of the common elements. This also means that all members are allowed to use the common elements subject to certain rules and regulations as set forth by the legal documents.
The HOA, collectively, is responsible for the insurance, maintenance and upkeep of the common elements. This is one of the primary responsibilities of the HOA. The members of the HOA pay common charges which feeds a budget that pays for these expenses.
Limited Common Elements
Limited Common Elements are common elements but are restricted to the use of a particular unit owner. These can include front steps, decks/patios, garages, parking spaces and other features that are reserved for the use of a particular unit owner.
Limited common elements can also include mechanical features such as duct work, plumbing, electrical wiring, furnaces, hot water heaters and air conditioners that service individual units.
Because these are common areas, they are collectively owned by all members of the association and the HOA is financially responsible for these elements, not the unit owners directly unless so stated in the legal documents.
How do I know if I am responsible for fixing something?
The best way is to refer to the declaration of condominium (or planned community) to determine whether or not you own it. If you live in a townhouse-style unit and the furnace is not deemed a limited common element, it is probably your responsibility.
If you live in a townhouse-style unit and the unit boundaries include the windows and doors but not the siding and roof and your roof is leaking, chances are it’s the HOA’s responsibility. If your window is broken in this scenario, it’s probably your responsibility.
If you believe that the malfunctioning feature is the responsibility of the HOA and have been told that they won’t fix it, I would recommend consulting an attorney. There are attorneys who specialize in common interest ownership law in every state.
Upper image courtesy of Stuart Miles/freedigitalphotos.net