THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Saturday, November 19, 1994 TAG: 9411170380
SECTION: REAL ESTATE WEEKLY PAGE: 04 EDITION: FINAL
COLUMN: Common Ground
SOURCE: G. Robert Kirkland and Michael A. Inman
LENGTH: Medium: 98 lines
Two years ago I bought a condominium and asked the sales agent what was taken care of by the association. I was told that everything outside my unit was maintained by the association.
Now, the manager tells me that the exterior needs painting and I will have to pay for it as a limited common element.
The manager also said that the association was scheduling the painting for next week and they must have my check by the end of the month.
What does this mean and am I really going to have to spend an extra $500?
It is probable that the manager is correct depending on how the declaration and bylaws define the various elements of the condo and their respective maintenance responsibility.
Condominium properties are composed of three separate components.
The first is the unit, or that portion of the building that you own exclusively. Generally, this will be the interior and those things that serve your unit only, such as a heat pump.
Other parts that are usually included in the unit are non-load-bearing walls, fixtures, doors, windows and carpet.
The second is the common elements, which refer to those portions of the condo used or available to all owners. These would include streets, pools, clubhouses and the like.
In a majority of the condos, this will also include roofs, exterior siding, fences, hallways, lobbies and parking lots.
Third is the limited common element. Like common elements, these are owned by everyone in the association, but their use is restricted to fewer than all the owners.
Limited common elements generally are stairs, decks, patios and similar portions of the building.
However, depending on the declaration, the bylaws and the plats and plans, these definitions may be substantially altered.
We have seen condos where everything but the roof and the parking lot was defined as part of the unit.
In others, the exterior siding and roof were defined as a limited common element. It is imperative that you review your legal documents to determine how the exterior of your unit is defined.
The declaration should list those parts of the property in each category. The plats and plans will show the larger sections by some type of chart.
The bylaws or the declaration usually allocate maintenance responsibility between the unit owners and the association.
If the documents show that the exterior is defined as a limited common element, you will have to then check to see how the documents assign the maintenance responsibility.
Many association documents provide that the owner to whom the limited common element is assigned will be responsible for the routine maintenance of that common element.
Routine maintenance generally means the day-to-day care such as sweeping or minor repairs.
The association then assumes the responsibility for major repairs or replacements.
In this case, the association would paint the exterior and pay for it with association funds. In other associations, the responsibility belongs completely to the unit owners.
Sometimes, the association is given the responsibility to schedule the maintenance of limited common elements, but the cost can be billed to the unit owners.
In your case, it sounds as if the association has hired a contractor to do all the units and is billing you for your share.
Call the manager and verify that this is the case. Also, ask the manager how you can arrange a payment plan.
Most boards of directors are sympathetic to hardship cases. They will generally require a written request outlining the reason and the payment schedule.
If the board approves your request, be sure to pay according to the schedule. The charge for the painting will be an assessment against your unit and failure to pay would be a default.
Your type of case is the reason we encourage prospective buyers to read the legal documents and budget of the association carefully before closing on a sale.
A review of these documents and a conversation with the manager or member of the board probably would have avoided your being taken by surprise.
We strongly urge real estate agents involved in the resale of a condo unit to make sure that you get the facts correct. An inadvertent error can be as damaging as an intentional one.
Failure to properly disclose any substantial fact can come back to haunt you. Buyer's agents should request a copy of the documents, with enough time to review them, before the contract is finalized.
An ounce of prevention in this case can be better than a ton of cure. MEMO: G. Robert Kirkland, president of a Virginia Beach property management
consulting firm, and attorney Michael A. Inman specialize in Virginia
community association issues and are affiliated with the Southeastern
Virginia chapter of the Community Associations Institute. Send comments
and questions to them at Real Estate Weekly, 150 W. Brambleton Ave.,
Norfolk, Va. 23510. To submit questions by phone, call 446-2033; fax:
446-2531. by CNB