J.W. from Hartford County writes:
Dear Mister Condo,
The Declarations for our community clearly indicate that maintenance for certain limited common elements are homeowner responsibility. Some homeowners maintain that our prior management company and boards have maintained those items using association funds. Other people feel that in order to budget and legally pay for those items going forward, that the Declarations should be amended to change those items to association responsibility. Does the current Board have an obligation to follow the Declarations and must the Declarations be changed for us to legally cover those items?
Mister Condo replies:
J.W., if the condominium’s Declarations state clearly items that are limited common elements and that the maintenance of those limited common elements is unit owner responsibility, it is interesting and surprising to me that previous Boards got it so wrong. They set a precedent that now requires the current Board to take the action of either breaking the precedent or modifying the Declaration. If it were I, I’d want to stick with the original Declaration. That requires the least amount of work and it was clearly the intention of the original developer and all previous purchasers of these units were presented with this Declaration stating what they were purchasing and what was expected of them. It is further possible that previous repairs made to these limited common elements should have been charged to the owners of record at the time the repair was made. However, that may be impractical and even impossible depending on how well the records were kept and how far back this precedent was set.
If your association has an attorney on retainer, this is an excellent example of where an expert opinion can help. Just because it was done incorrectly in the past does not mean it needs to be done incorrectly in the future. Get a legal opinion and take the appropriate action. My guess is that from this day forward, these limited common element repairs will be handled properly and you can put the issue to bed. Good luck!