One of the perks of owning a home in a planned development is the right to use the development’s common elements or areas. For example, you might enjoy a nice workout in the common fitness room, or a refreshing swim in the common pool. And the best part is thatsomeone else ordinarily maintains these amenities!
But which areas or elements are actually open for every homeowner's use is not always straightforward. A homeowner’s right to use a particular common element, and whether a homeowner has any maintenance responsibilities for the common element, depends on the rules governing the development and the type of common element in question.
In most developments, detailed information about the common elements is found in the development’s governing documents. These normally include the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs), the articles and bylaws of the homeowner’s association (HOA), and any separate rules and regulations. The type and location of the common elements are also described on the development’s plat or map.
To get a copy of the governing documents and plat or map, request them from the development’s HOA, from your real estate broker (if you have one), or from the real estate records office in the county the development is located in.
The CC&Rs typically define what a common element is; most often, as property in a development owned in common by all the homeowners (rather than by an individual homeowner). Almost all developments have “general” common elements.
Some developments might also have “limited” or “exclusive” common elements (which will also be defined in the CC&Rs).
Additionally, the development’s plat or map will show the physical location of all the common elements. The plat or map might also describe a common element as a general, limited, or exclusive common element.
The CC&Rs typically define general common elements as those available for the use of all the homeowners in the development.
The majority of common elements in a development are usually “general” common elements. Their exact location is likely to be depicted in the development’s plat or map.
In a single family home development, often all of the common elements are general common elements. General common elements might include such things as a common pool, a community park, or a common clubhouse. In a more upscale development, general common elements might also include such things as common entrance gates, fountains, tennis courts, and spas.
The definition of limited common elements that you’ll find in your CC&Rs is likely to say they can be used by more than one but less than all of the homeowners in the development. Townhome and condominium developments often have limited common elements in addition to general common elements. Examples include a patio shared by several owners or a pool for the use of a group of several condominium buildings in a large complex. The CC&Rs will describe which homeowners have the right to use which limited common elements.
To really understand who has the right to use a limited common element, however, you will probably need to look at the CC&Rs and the map or plat together. For example, a condominium complex’s CC&Rs might provide that the homeowners in condominium buildings 1, 2, and 3 are the only owners with the right to use the pool described on the condominium map as “Common Pool A.” You would need to refer to the plat or map to find out which buildings and pool the CC&Rs are referring to.
Some developments also contain exclusive common elements. Your CC&Rs are likely to define these as being for the exclusive use of one homeowner. Although any development can designate a common element as an exclusive common element, they are found more often in condominium or townhome developments (rather than single-family home developments). For example, exclusive common elements might include a balcony accessed by one condominium unit, the front yard of a townhome unit, or window boxes attached to a condominium unit.
Again, you will likely need to consult the map or plat along with the CC&Rs to determine which owner has the use of an exclusive common element. For example, a townhome development’s CC&Rs might provide that the owner of townhome unit 1-B has the exclusive right to use the parking space identified as parking space 1-B on the map.
The CC&Rs (and other governing documents) determine who must maintain the common areas. Part of this determination depends on what type of common element it is.
The HOA is normally responsible for the maintenance, repair, and replacement of all general common elements. It pays for these by collecting periodic dues from each homeowner. If you think about it, this arrangement makes sense -- since all the homeowners have the right to use the general common elements, they all share the costs of their maintenance.
The maintenance obligations for limited and exclusive common elements are typically more complicated. In some developments or instances the HOA is responsible for their maintenance, and in others it’s the responsibility of those homeowners who hold the right to use the particular common element. Look to the governing documents to determine who has the responsibility for maintaining, repairing, and replacing limited or exclusive common elements.
In many cases, the HOA must repair and replace limited or exclusive common elements, but the owners with the rights to use these elements must keep them maintained. For example, if a condominium unit owner has a balcony described as an exclusive common element (available only for that owner’s use), that owner will likely need to perform regular maintenance and upkeep on the balcony. However, if the balcony rips off in a hurricane, the HOA might be responsible for replacing it.
Even if a homeowner has the right to use a common element, this right is subject to any rules and restrictions in the governing documents. The restrictions in the CC&Rs and in any separate HOA rules and regulations can be as numerous and diverse as the people creating them.
For example, a development might have rules and regulations governing what hours the common pool is open, what type of shoes must be worn on the tennis courts, where you can walk on the common parks, or what age you must be to use the fitness room. The only way to know what all the rules and regulations are is to review the governing documents thoroughly, and keep up to date on any additions and changes.
As a current or future homeowner in a development, you must ensure you know your rights and obligations with respect to the common elements. If you need help reviewing the governing documents or are confused about common elements, contact a real estate professional in your area for help.