Condominium limited common elements: Know what you're buying
Condominium ownership is really popular in DC, Maryland, and Virginia. Here at Federal Title, condominium sales make up about 25% of our transactions.
Most people buying a condominium understand the basics – you’re buying a unit, and you have to pay monthly dues to cover the general expenses of maintaining the building, and there are common areas (in legalese – "common elements") like the hallways and the elevators that all of the unit owners can use (in legalese, "have an undivided interest in"). But what a lot of people don’t understand is that in addition to buying the unit and the interest in the common elements, you may also be buying what is known as a "limited common element."
A common element is normally defined as all parts of the condominium other than the units. A limited common element is a common element that is restricted for the exclusive use of one or more but less than all of the unit owners. So all limited common elements are common elements, but not all common elements are limited common elements.
Probably the easiest example of a limited common element is a parking space. (Joe posted a must-read for condo owners a few years ago that highlights limited common element parking spaces.) Another good example would be a patio or deck.
If you’re buying a condominium unit, and you’re also getting a parking space, and that parking space isn’t being transferred separately from the unit, then the parking space is probably a limited common element.
This concept of limited common elements is one of the reasons why it’s important to read the condominium documents closely so that you know what you’re buying. You need to understand not only what the limited common elements are but also who pays for their maintenance and upkeep and whether there are any restrictions on their use.
The limited common elements associated with your unit should be described in the condominium declaration, so that is the first place you should check, and you should read the bylaws. You should also review the plat and/or plans, if possible. The plat and/or plans show the location and dimensions of the units and the common elements and are one of the documents that must be approved by the jurisdiction as part of the creation of the condominium.
Also, in DC and Virginia there are certain things that are "deemed" by law to be a limited common element if they are designed to serve a single unit but located outside the unit – such as shutters, doors, windows, porches, balconies, and patios – unless the condominium documents say otherwise. So there might not be anything in the condominium documents about these items, but they are still considered to be limited common elements for particular units.
In Maryland, the declaration is supposed to contain specific language about this. There are ways for a limited common element to be transferred, which can differ depending on whether you’re in DC, Maryland or Virginia and depending on what the condominium documents provide, so if you have any questions about this, you should ask the condominium association to confirm (in writing) that the limited common element is still assigned to your unit. Check back in a few days for an expanded discussion of transfers.
On the maintenance question, you will probably need to look at both the condominium documents and the applicable law or have an attorney look at it if there is an issue.
Here’s a good example. I live in a self-managed condominium building that has just three units. There are only two parking spaces, and I’m the unlucky one who doesn’t have a space. I understood this when I put an offer in on the unit and confirmed it when I read the condominium documents prior to closing.
But the maintenance issue was something I never thought about until we were recently doing some capital improvements to the building exterior, which we were paying for via a special assessment on the unit owners, and a question arose over who should pay for repaving the parking area.
My first reaction was that I shouldn’t have to pay, because I have no right to use the parking spots. One of the unit owners agreed with me, but the other unit owner insisted that I be required to pay an equal share. I scoured the condominium documents, and they were silent on the question of maintenance of limited common elements. I didn’t want a protracted battle, and it wasn’t a huge amount of money, so I gave in and paid for 1/3 of the repaving costs.
I later realized that DC law was 100% on my side. The DC Condominium Act (Section 42-1903.12.) provides:
Except to the extent that the condominium instruments provide otherwise, any common expenses associated with the maintenance, repair, renovation, restoration, or replacement of any limited common element shall be specially assessed against the condominium unit to which that limited common element was assigned at the time such expenses were made or incurred.
The Virginia Condominium Code (Section 55-79.83.) has similar language. The Maryland Condominium Act is a little bit different (Section 11-110(b)(2)(ii)):
If provided by the declaration, assessments for expenses related to maintenance of the limited common elements may be charged to the unit owner or owners who are given the exclusive right to use the limited common elements.