T.G. from New Haven County writes:
Dear Mister Condo,
Our condos are free-standing single home type units. As people were buying their units, some had the builder/developer extend their decks to wrap around their units. This was an extra charge. The standard deck was a 6×28 foot bolstered deck. When painting began a few years later, the price varied due to the various sizes of these improved decks. The Board at that time felt it was only equitable and fair for those who had a larger than standard deck pay for their prorated share of the paint or maintenance cost. The board voted to adopt this policy. Now we have one of those unit owners complaining and refusing to pay his share saying its common property although the bylaws state decks serving a single unit are limited common property. Can you give us your opinion?
Mister Condo replies:
T.G., how condominium associations treat common and limited common elements like decks vary by condominium so my opinion would be that however the bylaws are interpreted by the Board should be the rule of the land unless the Board has misinterpreted those bylaws and/or the bylaws are so poorly written that there is no clear answer. As a rule, limited common elements are the responsibility of the unit owner, even though the association may pay for the contractor to provide the service for the element. In this case, the different-sized decks are creating an inequitable distribution of paint and labor. If the bylaws state that the association is responsible for the upkeep and maintenance of the decks that may be the case. Everyone pays the same via common fees and the folks with the larger decks actually come out ahead. However, if the bylaws state that the maintenance and upkeep is the responsibility of the unit owner, then a schedule of fees should be drafted to account for the extra paint and labor required to upkeep the improved decks. It is entirely possible that your bylaws are silent on the subject, in which case the Board could have created a rule to address the inequity, which is what sounds like what has happened. Owners that are unhappy with the Board’s decision may choose to contest it in court but I don’t think they would prevail. Enjoy those decks!