Publications
Limited Common Elements...Are They Common or Limited?
When the founding fathers of condominium law (whoever they were!) devised this form of property ownership, they divided all property into two classes; units and common elements. Units were defined by the air space contained within the four dimensions of height, width, breadth and depth. (Some would say that some unit owners operate within a fifth dimension!) Common elements were everything except the units. This even included the drywall defining the unit.
This has evolved over the years into the creation of a third, or hybrid classification – the limited common element. (Sometimes we have seen a fourth; the exclusive limited common element.)
The limited common element was any portion of the common elements that served a single unit. The thinking is that if a unit owner is the only one that can use or abuse this amenity, the costs of maintenance, repair and replacement should be limited to that unit owner. However, when it comes to items such as balconies, for instance, for aesthetic and safety reasons, most associations undertake the repairs and then charge it back to the affected unit.
In reading Section 4.1(a)(1) and (2) of the Illinois Condominium Property Act, it is sometimes confusing to the inexperienced reader since paragraph 1 defines a number of amenities as common elements and then in paragraph 2 says that the same things are limited common elements. That is because these items are common elements first, not part of the unit, but they are also "limited" in terms of use and responsibility.
Section 9 of the Act provides that expenditures for limited common elements can be assigned to the affected unit(s).
There are several areas that create confusion and probably need further clarification. For example, balconies and patios seem to be pretty clear-cut and they are specifically noted in the Act. Windows, entry and garage doors are another matter. They are in the perimeter wall, they can only be used exclusively by the owner of that unit, yet unit owners will often expect the association to pay for repair or replacement.
The philosophy of prudent financial management of an association is a contradiction of the concept "maintenance free living." Really, the only true maintenance free living is an apartment building.
In an association, each owner is expected to pay for certain repairs to portions of their unit. For an association to maintain and increase property values, it must keep the property in good shape, yet it cannot raise assessments so high as to make ownership unaffordable or non-competitive for resale purposes with similar types of communities. Therefore, the board should establish a policy designating certain amenities used by a single owner as a limited common element, and that owner’s financial responsibility.
In the long run, each owner pays one way or the other, but at least by segregating certain expenses from the operating budget, yet making sure the item is repaired by the owner, will accomplish both objectives.
Since windows (including the frame), entry doors, garage doors, patios, balconies, even the interior surfaces of walls, are deemed to be limited common elements a board can reasonably establish a policy to require owners to either undertake the maintenance themselves, use contractors selected by the association or have the association contract to do the work and charge it back.
In all instances, it is the board’s ultimate decision and it should always be made in view of what is best for the association.