Mincing Words: Is the Wood or Trex Deck a LCE? (WA)

[SeattleHighLife]

What is the name of your state? WA

I am on the Board of a 13-unit 10-year-old condo. No surprise here in the rainy NW, we have roof & torchdown deck surfaces that leak. There are also wood decks that cover the roof and torchdown deck surfaces in some but not all units that are in need of replacement/staining.

With personal interests at stake and a hefty bill for work to be done for all owners, there's obvious disagreement as to responsibility. The Board is looking for a resolution that is "fair" and fiscally and legally appropriate for immediate problems and for the long term.

At issue here are the following:
(1) Is it assumed that the definition of Limited Common Element (provided at the end) necessarily includes the material covering the torchdown surface, e.g., the wood deck? Owners are questioning this since it is alleged that the installation of the wood decks by the developer was optional when the building was constructed.

(2) If the wood deck IS NOT asssumed to be a LCE, is this appropriate for the owners to collectively decide in a vote, or for an attorney to decide? It is thought that the decision would then be amended to the Rules & Regs.

(3) If the wood deck IS assumed to be a LCE, then units who have them receive lifelong repair and replacement. If a unit without decided that they wanted a deck, does the HOA pay for it? If not, what about repairs and replacement to a deck that the owner subsequently buys? I assume that we need to grandfather existing decks.

(4) The term maintenance is not well-defined nor very practical for the HOA because of access. Cleaning or keeping the decks free of dirt, debris and mold? Staining? Power washing? Is it within the jurisdiction of the Board to clarify the term and amend the Rules and Regulations to include?

(5) Is it implicit that maintenance, repair and replacement of LCEs is accounted for in the higher assessment paid by owners of with a larger proportion of LCE, e.g., rooftop wood decks, parking spaces? Allocated interests were based on relative declarative value.

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CCD's state LCE include "The patio, deck or terrace adjacent to the Unit, if any" Maintenance language: "Except as provided below, the Association is responsible for the maintenance, repair, and the replacement of the Common Elements and the Limited Common Elements..."

Any advice or consideraton is appreciated. I would like to put this one to bed once and for all.

Thanks!

What is the name of your state? WA

[IndianaOwner]

A limited common element is something that is for the exclusive use of less than all of the units. That is, limited to one unit owner or all the way up to twelve in your case since there are 13 units. The maintenance of a limited common element should be paid for by those units that have the right to use that LCE. Hence, if a deck needs to be repaired or replaced and is a LCE for Unit #5, then Unit #5 pays for it. If a LCE for Units #2 and #3 needs to be repaired or replaced then Units #@ and #3 pay for it....

You're really making it more complicated then it needs to be...who maintains it (the assoc. or the individual unit owner) isn't the same as who pays for it. The assoc. can be responsible for maintaining LCE's but then charge assessments for those costs to the applicable unit owners.

[Paddy Reagan]

Youi've encountered one of the most confusing issues involved in condo ownership and management. Balconies, decks, and roof gardens that are dedicated to or accessable by single units are almost universally identified as LCEs. However, the boundaries and responsibilities are often difficult to establish. Usually, the only resource is the Declaration of Condominium which rarely provides adequate information. If a wooden decked roof garden designated as an LCE exists above a leaking roof, who is responsible for repairs?

In my experience, unless the declaration specifically states that an LCE owner is responsible for repairs to the decking, the association contracts and pays for the work. Generally, an LCE grants limited or exclusive access with responsibility only for routine maintenance.

Here are some comments in response to your questions:

(1) Is it assumed that the definition of Limited Common Element (provided at the end) necessarily includes the material covering the torchdown surface, e.g., the wood deck? Owners are questioning this since it is alleged that the installation of the wood decks by the developer was optional when the building was constructed.

Review the declaration carefully including the Survey Maps and Plans section. The plans should indicate the LCEs and the declaration should define the boundaries and responsibilities. Practically, if there are problems with the decking itself and the declaration is quiet on the issue, the board should ask the owner to replace the wood at his/her expense. If the roof is leaking underneath the deck and the decking has to be removed to make repairs, the cost of removal and replacement should probably be borne by the association.

(2) If the wood deck IS NOT asssumed to be a LCE, is this appropriate for the owners to collectively decide in a vote, or for an attorney to decide? It is thought that the decision would then be amended to the Rules & Regs.

You must ascertain if the wood deck is a part of the LCE. If the declaration doesn't tell you and the community wants to formalize the information, an amendment would be appropriate. The board should agree on its language and the owners must approve it by the percentage indicated in the declaration.

(3) If the wood deck IS assumed to be a LCE, then units who have them receive lifelong repair and replacement. If a unit without decided that they wanted a deck, does the HOA pay for it? If not, what about repairs and replacement to a deck that the owner subsequently buys? I assume that we need to grandfather existing decks.

The owners of units with LCEs may or may not have repair and replacement rights, depending on what your declaration tells you or how the board and owners decide to frame the amendment I described above. It would be very unusual for the association to pay for decks for those who chose not to buy them when the original sale took place.

(4) The term maintenance is not well-defined nor very practical for the HOA because of access. Cleaning or keeping the decks free of dirt, debris and mold? Staining? Power washing? Is it within the jurisdiction of the Board to clarify the term and amend the Rules and Regulations to include?

Maintenance usually includes those items you describe and, because some LCEs are not accessable except through the units, it's very common for this routine care to be the responsibility of LCE owners. If you wish to be more specific about such tasks, the Rules and Regulations whould be an appropriate place. In many states, boards of directors are able to change these independently with polling of the membership optional.

(5) Is it implicit that maintenance, repair and replacement of LCEs is accounted for in the higher assessment paid by owners of with a larger proportion of LCE, e.g., rooftop wood decks, parking spaces? Allocated interests were based on relative declarative value.

We're always hopeful that the intent of the developer is clearly established by the language in the declaration. Regardless, higher fees paid by owners with LCE access does not necessarily relate to repair and replacement. Formulas used to determine common expenses related to maintenance fees are usually based on square footage of individual units. In some states developers are able to increase these allocations for units with amenities such as decks and parking spaces.

[SeattleHighLife]

Paddy, I appreciate your thorough and informative response. I found it very valuable for the pickle we're in. We intend to review the survey map per your advice. I located the sections in the Declaration which define LCE. From what I read, it's a fairly strong conclusion that the decking material is LCE and that the owners of units with LCEs have repair and replacement rights. Would you agree? Thank you again.

ARTICLE 8. LIMITED COMMON ELEMENTS.
Section 8.1 Description. The Limited Common Elements allocated to the Residential Units, as shown on the Survey Map and Plans, are as follows:
8.1.1 The parking space or spaces assigned to the Unit pursuant to Section 9.1;
8.1.2. The storage space, if any, assigned to the Unit pursuant to Section 9.1; and
8.1.3 The patio, deck or terrace adjacent to the Unit, if any.

Section 10.4 Maintenance of Units, Common Elements, and Limited Common Elements. Except as provided below, the Association is responsible for maintenance, repair, and replacement of the Common Elements and the Limited Common Elements, and each Owner is responsible for the maintenance, repair and replacement of the Owner's Unit. Each Owner shall, at the owner's sole expense, keep the interior of the Unit and its equipment, appliances, and appurtenances in a clean and sanitary condition, free of rodents and pests, and in good order, condition, and repair and shall do all redecorating and painting at any time necessary to maintain the good appearance and condition of the Unit. An Owner of a Unit shall not change the flooring in any portion of the Unit which is directly above another Unit from carpeting to a hard surface without the prior written approval of the Board. Each owner shall replace any broken glass in the window or exterior doors of the Unit. Each Owner shall be responsible for the maintenance, repair, or replacement of any plumbing fixtures, water heaters, fans, and heating equipment which serve only that Unit, whether or not located in the Unit. The Association may, as a Common Expense, provide for the inspection of any portion of a Unit or Limited Common Element, the failure of which to maintain properly may cause damage to the Common Elements, Limited Common Elements or another Unit or cause unnecessary Common Expenses, including but no limited to, fireplace and flue, bathtubs, sinks, toilets, hot water tank and plumbing and electrical fixtures. If the inspection discloses the need for repair or replacement, the Association may either require the responsible Owner to make repair or replacement or to make the repair or replacement iteself and allocate the cost therof to the Owner.