J.G. from Windham County, Connecticut writes:
Dear Mister Condo,
Our current Declaration in Article 5 states portions of Common Elements are assigned as Limited Common Elements to the Units specifically including Walkways, Driveways, Patio and Decks. Section 6.1 designates these four LCE to be Common Elements that the Association is responsible for maintenance, repair and replacement (MR&R).
There is a Waiver Policy that when an owner gets approval to add a LCE or an addition, such as storm door, garden plot, skylight, standby generator, deck, etc. at his unit, the owner becomes responsible for future MR&R of that element. There is no mention of the waiver Policy in the Declaration. The question is, does the Waiver Policy override the Declaration statement of responsibility for a Limited Common Element (LCE) if it is specifically stated to be a common element in the Declaration? For example, a Unit Owner is granted a Waiver to add a deck at his unit. Is the Unit Owner now responsible for any future deck MR&R; that is, once the deck is built and starts to wear out or deteriorate, or is the Association still responsible for MR&R of decks as per the Declaration?
Mister Condo replies:
J.G., that is a great question! An attorney could probably give you a more definitive answer but from a practical standpoint, the association has no duty to allow any alteration to any unit or limited common element. They certainly have no duty to maintain a common element that a unit owner altered or improved so the agreement with the unit owner that they maintain the altered or improved limited common element via waiver is fair to all concerned and is a good business policy for the association to follow. The only other practical solution would be to deny all such requests at the improvement adds cost and risk to the association. That would be incredibly unfair to units that either did not make similar improvements or may not be eligible to make such improvements because of their unit locations. I can’t imagine the Declaration contemplating improvements to limited common elements so I am not surprised to learn there is no mention of it there. As long as the Board has followed the rules for adding the Waiver policy, and it sounds like they have, I see no problem with the way they are handling the requests for limited common element alterations and maintenance. All the best!
4 thoughts on “Condo Board Allows Alteration to Limited Common Elements Provided Waiver Signed by Owner”
Although it sounds like the horse is already out of the barn, in that some allowances have occurred due to the policy, I feel NO waiver forms and/or policies should ever be adopted unless thoroughly reviewed and/or drafted by an attorney well versed in HOA law in connection with all the governing documents, statues and case law. The association may be able to enforce their policy amongst themselves, but if a lawsuit was filed for any reason, especially an injury or significant property damage, the waiver needs to be a bulwark to hopefully hold up in court. It could be a rude awakening if the association found out the hard way, when the waiver policy was balled up and tossed in the waste basket by a judge or jury, and is then responsible for costs, fees, etc., and possibly back costs that could not be waived away.
Thank you for your comments. Association Attorney did provide the language in our waiver policy back in 2019 but now this is being questioned because the Declaration clearly states, for example, Decks are the responsibility of the Association. Our Board is setting up a meeting with the Association’s attorney this week to clear up this issue.
Waiver or not, are future owners of that modification or modified area responsible for maintaining it, or does responsibility fall back on the Association no matter what. If so, can the Adsociation then decide to undo whatever was done after sake of the unit?
S.D., it will all depend on how the waiver is worded. Typically, the permission is granted in perpetuity and so is the maintenance. However, that is not always the case and if no provisions for maintenance were included, it could very well become the responsibility of the association. This was the reason for my initial caution and also the reason I suggested that the Board consult with their own attorney before simply offering up the association’s common elements to individual unit owners who wish to make modifications to their own units. Undoing the waiver would likely be a major court battle and would be almost impossible to win. All the best!