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Habitat Magazine June 2020 free digital issue

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LIMITED COMMON ELEMENTS

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Limited Common Elements

Jun 08, 2020

Condo property includes both common elements and limited common elements. C. Jaye Berger, principal in the Law Offices of C. Jaye Berger, explains to Habitat the kind of confusion this can cause.

When you purchase a condominium apartment, you’re buying actual property. And condo property includes both common elements and limited common elements. What kind of confusion can this cause?

With more people buying condominiums, you have a lot of new owners who are not familiar with those terms. Common elements would be the areas of building that everybody uses, such as lobbies, hallways, laundry room or the roof of the building. Limited common elements are special and usually include things that are directly connected to an individual unit and can only be used by the owner. People think that if it’s there just for their use, they can do whatever they want. But in fact, the building owns it, and that’s what creates the confusion.

Can you give an example of how this might crop up?

Let’s say you have an apartment and outside is a little shelf, a kind of mini-terrace. It doesn’t have a railing or a door that opens out onto it – it’s a mini-portion of the roof that is next to an apartment. But a lot of people looking at an apartment like that might think, “What a beautiful view. I can really do something with this space.” And that’s where it gets confusing. You don’t own it; the building does.

So when you buy a condo apartment, how do you know what is considered a limited common element?

If it's not part of the deed, it’s not yours. You have the right of use, so you could open up a folding chair and enjoy the view, but that’s very different from ownership. Sometimes a broker is gets overly enthusiastic and implies to prospective buyers that they can do what they want with the limited common element space. The broker might say something like, "Well, the board might just consider opening up that wall and letting you do blah blah blah." That may indeed be possible. But it’s not guaranteed, so you can’t rely on that as your reason for buying the unit.

What can boards do to clear up the confusion?

For starters, boards shouldn’t even entertain questions from prospective buyers about renovating a limited common element. That conversation should only happen with unit owners. Boards also need to have a clear policy that lays everything out. But I’ve found that not all boards even understand what a limited common element is.

Should a condo board do its own evaluation of these types of limited common elements?

They should bring in a licensed architect, who can tell them what can and can’t be done from a structural point of view. If the architect says there’s no way to put up fencing around a supposed terrace and make it safe for people to sit out there, that’s the end of the conversation.

So even though condo boards are not as involved as co-op boards when it comes to buyers, sounds as if they’d be wise to step up their game when it comes to limited common elements.

Yes. And that includes staying on top of what owners are doing with their spaces. Sometimes what happens in buildings is that people start doing things with their limited common elements without telling you. They move air conditioning equipment onto the limited common element, and other things. And if a building is lax, before you know it, the stuff has been there for several years. At that point, an owner might say that after all this time they’ve acquired equitable rights to stay there, and you might have to sue. Stuff like that happens. You want to be careful and head off problems before it ever reaches that point.

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