Governing Documents Define Common Area: Understand what the specific provisions in the governing documents say about limited common elements.
By Ilyce Glink and Samuel J. Tamkin
Q: My condo association has repeatedly repaired our roof. It has also paid for repainting parts of the ceiling in my unit on multiple occasions. I live on the top floor of a five story building.
Whose responsibility is it to replace rain damaged ceiling insulation? And, whose responsibility is it if the insulation above my unit has been blown around to other units?
My long dead neighbor admitted to taking out huge bags of insulation a decade ago when he remodeled his kitchen. He stated it blew in from other apartments. Our building was constructed 27 years ago. I imagine the “attic” space (which has about 18” height) is a “common” area. Therefore it is the building’s responsibility to replace the ceiling insulation. Our management company stated the insulation above my unit is the unit owner’s responsibility and as such I’m free to replace it but at my own cost.
Governing Documents Define Common Area
A: It’s an interesting question. We could just say that you should review your association’s governing documents to figure out what they say regarding this issue. We suspect, however, that those documents may not discuss the specific issue of insulation above your unit.
Usually when attorneys prepare the governing documents for a condominium association. The type of association is important in determining who should be responsible for what within the buildings.
What Does Building Maintain
But, let’s dive a bit deeper. Let’s say you live in a high rise building. The insulation above your unit may be the insulation that is also below someone else’s unit. The top floor unit may have insulation above that unit. That insulation may be part of the building and not specific to the top floor unit.
On the other hand, the main water pipe coming into the building and the main water distribution to the units may be used in common by all of the unit owners. If something goes wrong, the building will likely pay for the repair or replacement of the main water system. However, the water feeder line that goes only to one specific unit might pose some interesting issues. As only that specific unit gets the benefit of that water line. The same thinking can be applied for other unit-specific items, such as chimneys that serve only one unit. Some condos will cover these repairs as a common element, and others may not.
Common Elements of Unit
Where does this leave you? The governing documents will, or should, contain language that talks about the association’s general responsibility for the repair, upkeep, maintenance and replacement of the common elements. That same document should outline where a condominium unit ends and where the association’s common elements begin. When you know what is yours and what is the association’s, then you have to figure out who is responsible for what.
In your situation, we suspect your unit ends at your ceiling and everything above your ceiling is considered a common element. Your governing documents should discuss whether certain common elements are for the specific use and enjoyment of a specific unit owner — a limited common element — giving rise to that unit owner’s obligation to take care of that specific item.
Limited Common Elements Area
We think the manager of the building is treating the insulation above your unit as a limited common element for you to care for. Whether the manager is correct or not is subject to interpretation under the governing documents. This is why it’s important to understand what the specific provisions in the governing documents. What they say about limited common elements or any common elements. That are the responsibility of an individual owner and not the association.
Limited Common Elements Vs. Common Elements
In thinking about your question, Sam took a look at a sample condominium declaration. That noted that the limited common elements would include “any system or component part thereof which serves a condominium unit exclusively, to the extent that such system or component is located outside the boundaries of the condominium unit, including, without limitation, air conditioning systems.”
You might say that’s pretty broad and vague. It is quite broad. We don’t think that the wood 2x4s around your unit, the siding outside your unit, and other structural or construction items that surround your unit would usually be considered a system or component. We tend to think of plumbing, electrical and heating and cooling systems as fitting that description; as well as flues and chimneys that serve one specific unit.
It seems a stretch to us that the insulation that fills cavities around a unit along with the wood beams and 2x4s would fit the bill description of a limited common element. Those seem to us to be integral to the construction of the building as a whole. And considered common elements for the association to maintain.
Start with your Governing Documents
Having said that. We don’t know the specifics of your unit, the type of building and several other details that would be important. For a definitive opinion, start with your governing documents. Then consult with a real estate attorney in your area who has experience in condominium law.
Finally, if the decision is that the insulation is a limited common element. Then it will be up to you to take care of the issue. But, if it’s a common element, then we believe the association should take care of it.
Let us know how it turns out. Thanks for the interesting question.
©2022 by Ilyce Glink and Samuel J. Tamkin.