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Who is Responsible? Common Elements & Limited Common Elements PDF Print E-mail

by Wolf Peddinghaus, HausFS

Not all common elements in a condo building are created equal.  Rather, some common elements are limited common elements.  What is the difference between the two, and who is responsible for maintenance of each?

According to the Illinois Condo Property Act (“Act”), Section 2 (e), common elements are defined as “all portions of the property except the units, including limited common elements unless otherwise specified.”  So, common elements are everything except the unit and the limited common elements.  But what is a limited common element?

A limited common element is defined in Section 2 (s) of the Act as “a portion of the common elements so designated in the declaration as being reserved for the use of a certain unit or units to the exclusion of other units, including but not limited to balconies, terraces, patios and parking spaces or facilities.”  It must be emphasized that if there is confusion, or lack of definitions, between a building’s declaration and the Act, the definitions contained in the Act prevail.

Further, even if a common element is a limited common element like a balcony, it still falls under the supervision and control of the Board.  This means that the Board, subject to the limitations set forth in the Act, can control its use, operation, maintenance, and repair.  It is interesting to note that the Board could be in breach of its fiduciary duty if it does not maintain control of the limited common elements.

It is important for owners to understand the difference between limited common elements and common elements because it can affect them financially.  For example, a declaration may specifically state that patios or balconies are not limited common elements.  In this case, unless the damage was caused by the individual owner, expenses related to maintenance or repairs are borne by the association.  If it is a limited common element then all expenses are the burden of the specific owner.

It is likely that a building’s Declaration is vague as to what common elements are limited as well as what limited common elements are to be maintained at the expense of the owners.  In situations like this it would be a very good idea for the Board to create a list of which common areas are considered limited and to create policies that clearly define whether the individual owners or the association will be liable for the expense of maintenance and repair.  This may require an amendment to the Declaration.  However, if the issue comes up frequently, an amendment will prevent confusion and possible disagreements throughout the life of the Association.

 

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