Don’t Assume that Everything is Reasonable
Raymond Harrison, Esq., advises condo association representatives about condo docs on a daily basis. It is common for board members, unit owners and property managers to describe many portions of their condo docs to be confusing. It is also common for them to assume that the condo docs may be confusing, because they are not condo lawyers. Ray often advises them not to be discouraged, because their ability to understand is not inadequate. The condo doc language is often confusing because it wasn’t drafted with adequate legal precision, and it expresses unreasonable information. In other words, the condo doc language is confusing because it is a mess.
Who Pays for New Windows?
Unit windows will need to be replaced at some point, and the question arises as to whether the unit owner or the association pays for the replacement. The declaration should state clearly who pays for unit window replacements. The declaration language should provide this information in clear, express and unambiguous language that may be understood by any reasonable person with basic reading ability. Ray has reviewed hundreds of declarations in order to advise associations about who pays for new windows. Unfortunately, he regularly reads unclear and vague language that provides unreasonable information about who pays for new windows.
How Can a Window be Both Part of the Unit and the Common Elements?
Condo docs define unit boundaries, the interior of which contain the unit, and the exterior is common element. Here is an example of unreasonable declaration language:
The unit boundary is the exterior surface of the glass panes and the interior surfaces of the window sills, moldings, trim, jams and mullions.
With this language, the glass is deemed to be part of the unit that is owned 100% by the unit owner, and all other parts of the window are common elements owned by every unit owner in the condo. When Ray lived in a condo, he was the only person using the windows in his unit, so his thought was, why would everybody in the entire condo own most of his windows?
Do Unit Owners and the Association Pay for New Windows?
The state law has a section to help us when there is vague and confusing declaration language. It states that any part of a window, outside of unit boundaries, that serves a single unit, is part of the limited common elements allocated to that unit. Limited common elements are portions of the common elements, the use of which are restricted to a particular unit. The declaration for this example cited above did not state whether or not the limited common elements were to be maintained, repaired and replaced by the unit owners or by the association. For this example, the unit owner pays for the window glass and the association pays for all other parts of the window. This result is unreasonable.
Fixing the Mess
Ray has encountered messes like this many times before, and he has a solution. With a declaration amendment proposed by the executive board, vagueness, confusion and unreasonableness can be replaced with clarity, simplicity and reasonableness. He writes new declaration language that can be easily understood by unit owners, board members and property managers. Ray also writes new declaration language that is lawful and reasonable for all situations that are likely to arise.
Windows are Parts of Units
Unit windows are used exclusively by the owners and the residents of the units. All unit components are for their exclusive use and are owned 100% by the unit owners. There is nothing common about the use of unit windows. Unit windows have no structural building purpose but rather fit into the rough framing for the building. It is reasonable for the entire manufactured window product to be described as part of the unit using clear, simple declaration language.
Owners Should Replace their Windows
Some unit owners take better care of their widows than others, and some windows will have to be replaced sooner than others. Some units are occupied by more people and some by fewer people, with varying degrees of wear and tear. It is not reasonable to expect that only most of, but not all of, a window should be replaced at the expense of the association. Unit windows should be in the same category as other parts of units when it comes to maintenance, repair and replacement obligations. It is reasonable for unit windows to be replaced by the unit owners at their expense, as stated in clear simple declaration language. Ray has helped clean up a lot of these declaration language messes, and there are plenty more to clean up.
