This post is one of a series about 10 Most Common Misperceptions About Condominium Laws And Operations, which I presented at the Maine Condo Forum and Expo in Portland, Maine, on September 25, 2010.
The Maine Condominium Act has “statutory” limited common elements; those things that are limited common elements unless the documents otherwise provide:
“Except as provided by the declaration: … (4) Any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios and all exterior doors and windows or other fixtures designed to serve a single unit, but located outside the unit’s boundaries, are limited common elements allocated exclusively to that unit.”
Responsibility and control of decks and other limited common elements is commonly misunderstood by Boards. Limited common elements are a subset of the common elements and are not a part of the condominium unit. They are subject to the same rules regarding maintenance, repair, replacement and appearance, as other common elements, unless the condominium act or your documents say otherwise.
Unit owners, and the Board, frequently believe otherwise. Since an owner has exclusive use of a deck she may mistakenly believe that she “owns” it and is free of the control that the Board otherwise exercises over common elements. The Board may feel the same way. Conversely, the Board may wrongly believe that it is the unit owner, not the Board, which has legal responsibility for maintenance, repair and replacement.
The Board usually has authority to regulate the appearance of limited common elements by virtue of a specific provision in the Maine Condominium Act.
Windows present special problems. First, the Condominium Act does not define what it means by “window”. Is it only the window glass or does it include the window frame as well? If the “window” does not include the frame, then who determines whether the window needs to be replaced when the window and its frame are manufactured as a single unit and cannot be separated? the frame may be part of the unit, or part of the common elements, and therefore subject to different rules regarding maintenance, repair and replacement. The area surrounding windows frequently leak, raising questions whether the unit owner or the association is responsible for any resulting damage.
Recommendation: Carefully check what your documents say about maintenance, repair and replacement of decks, outside doors and windows, and other limited common elements, and make clarifying amendments to your documents if necessary.