Today I was asked again about whether the waterproof coating on a limited common element deck was the unit owner’s responsibility or the condo association’s responsibility.

The answer depends on your specific condominium declaration, and depends on several factors, most of which owners and managers are confused about.

First is the boundary of the limited common area. Often the boundaries of the “deck” are defined as the surface of the perimeter walls, rails, fences, windows, doors, etc. So in effect the limited common area is a block of air surrounded by the structural elements that make up the deck. The association maintains everything except the block of air.

But what about the deck coating? Is it a “finished surface” on top of the deck structure, or is it part of the deck structure, providing the waterproof protection to the structure of the building? Rarely does a condo declaration do a good job of defining this. Sometimes the board will need to pass a resolution to set a consistent standard for their building. Better still is to amend the declaration to define the boundary and responsibility for cleaning differently from the responsibility for repair and replacement.

Second is whether or not the costs for allocating repair expenses to specific limited common elements can be passed to the unit owner to which it is assigned. Some declarations clearly pass those costs on to unit owners. Some declarations clearly do not. The problem is that some have a conflict drafted into them, making the answer unclear. Each position can point to a specific section of the declaration to support their preference.

To make this more complex, the term “maintenance” is broad and could refer to cleaning, or to repair and replacement activities. The term is almost never defined by the declaration, and most boards have not differentiated this term from cleaning, repair, or replacement.

The issue of who pays for specific portions of the building repair can extend to anything that is designated as a limited common element. More modern declarations may assign windows, doors, wires in the walls, pipes in the walls, fireplace flues, dryer vents, or anything that serves only one unit, as limited common elements. It often requires a more thorough analysis of the condominium declaration, and the physical makeup of the building, to determine what the association is responsible for maintaining and paying for, and what the unit owner is responsible for maintaining and paying for. Often the association is responsible for performing work which the unit owner is responsible for paying for. You want to make sure that when that happens, the owners are informed in advance and expecting to pay for services provided.

It is best to clarify in writing the responsibilities of each party, and the dividing line between them, before you have some major repair, or an unexpected expense like a broken pipe to deal with.

If you have any questions we can answer, please feel free to leave a comment or contact us directly. We look forward to continuing this conversation with you in our future posts!