Are we dealing with part of a unit, the common elements or a limited common element? This is often the first question when analyzing maintenance, repair and replacement responsibilities in a condominium. That question also often relates to: Who pays?
Today, let’s focus just on identifying limited common elements, which can be a little tricky sometimes. The Washington Condo Act defines limited common elements:
RCW 64.34.020 (27) “Limited common element” means a portion of the common elements allocated by the declaration or by operation of RCW 64.34.204 (2) or (4) for the exclusive use of one or more but fewer than all of the units.
Thus, in order to identify limited common elements, you need to review the declaration and RCW 64.34.204(2) and (4) which states:
Except as provided by the declaration:
(2) If any chute, flue, duct, wire, conduit, bearing wall, bearing column, or any other fixture lies partially within and partially outside the designated boundaries of a unit, any portion thereof serving only that unit is a limited common element allocated solely to that unit, and any portion thereof serving more than one unit or any portion of the common elements is a part of the common elements.
(4) Any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, and all exterior doors and windows or other fixtures designed to serve a single unit, but which are located outside the unit’s boundaries, are limited common elements allocated exclusively to that unit.
Going through the complete analysis is important. For example, many people may assume that an exterior awning is a common element because it located outside of the unit boundary. Before reaching that conclusion, you must determine: Is the awning serving a single unit? Does the declaration provide otherwise? The “except as provided by the declaration” language in RCW 64.34.204 makes it possible for the declaration to vary the default rules in RCW 64.34.204. The point is: Don’t assume something is a limited common element without analyzing the question.
In Oregon, the analysis is a little easier. Oregon’s Condo Act defines limited common elements as:
ORS 100.005 (17) “Limited common elements” means those common elements designated in the declaration, as reserved for the use of a certain unit or number of units, to the exclusion of the other units.
Keep in mind, however, that an Oregon declaration may “reserve a common element” for the “use of a certain unit or number of units” without using the “limited common element” label.
Determining whether something is part of a unit, a limited common element, or a common element (or general common element in Oregon), is not typically the end of analyzing a community association issue, but it is an important first step.
Do not hesitate to reach out to us at Barker Martin if you have a question on this, or any other condominium or homeowner association legal issue.
