A source of considerable confusion and disputes between homeowners and their homeowners association (HOA) involves issues pertaining to those portions of the common area that are designed for use by less than all of the homeowners. Most common interest developments, and particularly condominiums, are constructed with certain portions of the property that are physically located outside the boundaries of the unit or separate interest owned by the homeowner, but which were clearly intended by the developer for use and enjoyment by one (or some, but not all) unit(s). Such areas are commonly known by terms such as “limited common elements,” or “exclusive use common area.” Examples include areas such as parking spaces, patios, stairways, hallways, decks, and entry doors. In some instances, fixtures such as plumbing pipes, water heaters, or air conditioning equipment are included.
The areas within a common interest development that are designed for use by than less than all of the homeowners should be defined in the project’s governing documents such as the condominium plan, the declaration, and/or conditions, covenants, and restrictions (“CC&Rs). In the absence of a clear definition in an HOA’s governing documents, most state statutes will contain a default definition that would apply.
Even though certain common areas or components may be limited in use, or exclusively used by one or some homeowners, those areas are never exclusively controlled by the owner(s) that enjoy the use. In fact, the HOA retains the ability to control how the area is used. A common example is HOA rules that dictate items that may be stored on a patio or balcony.
A frequent source of confusion pertaining to common areas or components that are limited in use pertains to who is responsible for the maintenance and repairs of those areas. The respective responsibilities of the homeowner and the HOA concerning the maintenance and repairs of limited common elements, or exclusive use common area, should be clearly spelled out in the association’s governing documents (generally the CC&Rs). If not, state statutes typically provide default provisions that would apply. In either event, the applicable provisions should make it clear who is responsible for the maintenance and who is responsible for the repairs and replacements. In the absence of clarity on this issue, there would be an ambiguity that would likely be resolved in favor of the homeowner. Any such ambiguities that exist in an HOA’s governing documents should be resolved by appropriate amendments to the governing documents.
To minimize homeowner confusion and resulting conflicts between homeowners and their HOAs over rights and responsibilities relative to limited common elements, or exclusive use common area, associations should have clear and unambiguous provisions in their governing documents that: (i) describe the areas and/or components that are intended for use by less than all of the homeowners; (ii) specify all rules pertaining to how such areas and/or components are to be used; and (iii) specify who is responsible for the maintenance, repairs and replacements of those areas and/or components.