Condominium's Floor Plan Discrepancy Leads to Legal Dispute

Responsibility for maintaining and repairing various things in a condominium depends on whether the elements are defined as common or limited common. Limited common elements are the responsibility of unit owners. The wrinkle to be aware of, however, is that every condominium’s floor plans are filed with the city and if there is a contradiction between those plans and what the governing documents outline as common and limited common elements, the floor plans win.

THE TANGLE  It is very typical, especially in somewhat smaller buildings, for units to have central air conditioning with the compressors on the building’s roof. That was the case in this particular condominium. One of the unit owners went up to the roof to service their compressor but opened, and left open, the door to a neighbor’s unit, probably by accident. Two days later there was a very heavy rainfall and the neighbor’s unit was flooded and destroyed. These are not inexpensive pieces of machinery, and the neighbor had to replace it with a brand new compressor to the tune of around $10,000. 

When the unit owner told the board what happened, it replied that the compressors are a limited common element and therefore not the responsibility of the condominium. The unit owner contacted me shortly thereafter and asked me to take a look at the documents. And it turns out that the HVAC compressors are not mentioned at all in the building's declaration or bylaws, so it wasn’t clear what kind of element they were.

THE NEXT STEP  Every condominium’s floor plans and declaration are simultaneously recorded with the city register, which are available on the city’s ACRIS system. That's important because nearly every declaration that I have read says, "If there is any inconsistency between what the declaration and bylaws say versus what the floor plans show, the floor plans win." And when I pulled up the floor plans for the roof it was shaded in as a general common element. This meant that the compressors were the responsibility of the condominium, not the unit owners. The condominium has been in existence for a decade, and everyone assumed that the rooftop HVAC compressors were limited common elements because frankly they should be, but that's not what the documents say and the documents are going to control.

THE FIX   Maybe it was just a mistake made by the attorney who drafted the declaration, but that doesn't change the fact of what the documents say. And if the condominium wants to declare the HVAC compressors to be limited common elements, they need to amend the declaration. In the overwhelming majority of condominiums that will require a 2/3 majority vote of the unit owners. It’s not that unusual for all a condo’s units to be sold without anyone noticing there is a problem like this. When a condo board is finally formed to take over control from a sponsor it is vital that a thorough review of all the governing documents take place. It’s a lot easier to amend documents when boards first gain control than years down the line.