FAQ Check: The Tricky Trap of "Limited Common Elements"
June 9, 2011 — Think your front door is your own? Want to install a barbecue grill or a satellite dish on your patio? Better not do it if you don't know about limited common elements.
Here, in easy Q&A form, is what you need to know about one of the most subtle minefields in co-op / condo apartment living.
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Q. What is a "limited common element"?
A. A limited common element is that part of a co-op or condo property that is used exclusively by one particular shareholder / unit-owner but which is considered part of the property of the cooperative corporation or condominium association. Typical examples include the hallway-facing front of an apartment door, an apartment's outside patio and the space between your ceiling and the floor of the apartment above you.
Q. What is a typical co-op or condominium board rule involving limited common elements?
A. One well-known example is that of Holiday Villas Condominium on Staten Island. In 1999, the board established a house rule that permitted unit-owners to install exterior antennas and satellite dishes on the common elements. Before this, all such installations were prohibited. A unit-owner who wants to install a dish must sign an installation agreement specifying that the dish cannot be larger than 18 inches diameter and must be installed on the roof of the building.
Q. What can happen if I violate such a rule?
A. The co-op / condo board will likely send a letter demanding that the violation — a child's kindergarten drawing taped to your front door, an unapproved grill installed on the patio -- be removed. Failure to do so may lead to fines and eventually a lawsuit.
Q. Do I have any options?
A. Courts have ruled that you must try to use all available remedies under your co-op or condo's bylaws and other rules, such as bringing the issue before the other unit-owners and trying to amend the bylaws. Alternately, you must be able to demonstrate to a court that going through such a process would be futile.
Q. What about that federal law that allows satellite dishes?
A. The 1996 FCC rule titled "Preemption of Restrictions on Placement of Direct Broadcast Satellite, Broadband Radio Service, and Television Broadcast Antennas" allows homeowners to put up such receivers, with the only restrictions allowed being for safety and historic-district issues. However, the rule only applies to those areas where you have "exclusive control," and even though it might seem as if you have exclusive control of a limited common element such as your patio — other residents can't just come over and use it — the courts have interpreted control to include a corporation/association's technical ownership of the element.
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