Can a Condo Board Require Me to Pay For a Limited Common Element? When a common element of a property becomes a limited common element, can the condo association board force you to pay for it?

Q: I just read your article on relating to limited common elements in a condominium association, and I have some questions.

We own two units on the same floor in a condo and benefit from the hallway space between them. The plan for our association states that when two owners of adjacent units are same, the hallspace is treated as a limited common element. It reverts to common element status once owners are different.

The board agrees with that but wants to charge us a license fee and monthly charges for the hallway space. We initially agreed, but after carefully reading the documents, feel now there is no reason to pay for a license (which is several thousand dollars) as one is not necessary and we should only pay monthly fees.  

Please note, the board owners are also holders of roof space appurtenant to their unit which is also a limited common element in our by-laws. There are other roof decks which have licenses but these are not appurtenant. Also, there are two other units the developer of the building sold that were joined together and never received a “license.” The sale was made as one unit. In our case, we purchased the first unit from the developer about 10 years ago and then purchased the other unit recently.

Can you advise us whether you believe the board has authority to grant a license. And, if they have the authority, can they charge for a license and monthly fees when they are not charging others in a similar position?

A: These are interesting questions and the answers may depend on what your condominium declaration states and what the statute that regulates condominium associations in your state provides.

When you buy in a condominium association, you are buying the interior space within your condominium unit. The exterior walls, ceiling and concrete floor below your flooring are part of the building and are considered to be common elements owned by the association.

If you have a balcony, patio or other private area, that area might be designated a limited common element. That is to say, use of that common element is limited exclusively to you or your unit. In your situation, the hallway outside your unit is a common element that may become a limited common element under certain situations. The key there is what the declaration or state law provides.

If your declaration provides that you have the right to the hallway automatically upon buying two units and that hallway space becomes a limited common element for the benefit of both units, the next issue is whether the declaration elsewhere provides for a payment or fee for the use of limited common elements. We’d hope that the document would explicitly give you the right to the right to use the hallway area and then would not state that the association has the right to charge you to use that space.

On the other hand, the declaration may allow the association to charge owners a fee for the use of portions of the building that are used by only one unit. Usually the most common limited common elements that may have a fee associated with them are parking spaces. We have seen some associations charge a fee to an owner for the use of a hallway area adjacent to their units. In some instances, that fee was a one-time fee while in others, the association set it up as a monthly usage fee.

Sitting here, we can’t tell you whether the charge is proper or not. You’ll probably have to talk to an attorney that focuses his or her practice on condominium law in your state and figure out what you can and can’t do with the hallway and what the association can and can’t do when it comes to charging you for the hallway area.

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