When Repairing the Common Elements …

The statute which governs condominiums states that a declaration must include, among other things, the number of units in a condo, including how they are designated, their location, the approximate number of rooms, and the overall size. It also requires a description of the common elements.

 What do I mean by common elements? To put it as simply as possible, when you purchase an apartment, you get a deed for your unit together with a percentage of common interest. In the most practical sense, your percentage of common interest is really your interest in the common elements – the hallways, the elevators, the lobbies, the foundations, the underlying structures of the building, and whatever else your particular documents deem a common element (often, including the amenities space). The “unit” is, with variations, the physical space that you live in, your apartment.

One thing to remember about condo declarations is that they are drafted by the sponsor, the sponsor’s lawyer, and importantly, the sponsor’s engineer or architect. This is because when describing common elements, you often have to get into the details of the building’s mechanical systems and how they interact with one another.

When looking at common elements, boards must review the declaration in conjunction with the bylaws, which govern such things as repairs and maintenance of areas and systems. The important question is who has the obligation to repair, maintain, and replace items within units and within the common elements, and also maintain equipment and building systems that may service only a few unit-owners.

It is worth noting that condominium documents often require updating. They are typically drafted before the building is lived in and before anyone can determine how everyone and everything works together. Developments occur, technology changes. Things that we could not have imagined 10 years ago are now commonplace.

As a practical matter, you’re probably not going to amend the declaration’s definition of units and common elements. There are some circumstances, in fact, where you might need 100 percent unanimity among unit owners to do so. What you could do is attempt to have the unit-owners amend the bylaws, perhaps to alter or modify responsibility for repair, maintenance, and replacement of units or common elements. Even that, however, requires the vote of at least two-thirds of the unit-owners in both number of apartments and common interest (some bylaws may require a larger vote).

Finally, take note: boards can often require supplemental agreements, which are formulated by board vote only, so long as they do not contradict or are not in violation of the declaration and bylaws. One way is through an alteration agreement, which may lay out specifics with regard to maintenance of units, altered systems, and common elements. Another is a license agreement that allows for a unit-owner to incorporate hallway space into his or her apartment, and then requires the unit-owner to maintain that area (and return it to a public hall under certain circumstances). Both alteration and license agreements lay out additional maintenance, repair, and replacement obligations for the unit-owners.