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!