Get 2 months of free community web site hosting from Community123.com!
Thursday, November 15, 2018
Get 2 months of free community web site hosting from Community123.com!


SBCA: Free education for HOAs and condos on satellite placement issues.
(National Trade Organization)
Helping HOAs, condos and property managers with satellite placement issues since 1986.
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Does Common Elements mean the same thing in your Docs and in your Statute?
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
NpS
(Pennsylvania)

Posts:3125


12/05/2014 7:57 PM  
Under PA statute, Common Elements consist of Common Facilities and Controlled Facilities. Common Facilities are owned by the HOA. Controlled Facilities are managed, controlled, or regulated by the HOA but not owned by the HOA. A Controlled Facility can be on a unit owner's property.

Our statute is the PA version of the Uniform Planned Community Act (UPCA), which I believe is where this division of Common Elements into Common Facilities and Controlled Facilities comes from. So if your state law is based on the UPCA, then you probably have a similar setup.

The UPCA in PA was enacted after our HOA was formed. So in our organizing docs, the provisions about Common Elements aren't designed to distinguish between rights and responsibilities regarding Common Facilities and Controlled Facilities. Under the UPCA, our HOA should have a bit more reach than it did before, but we've never had to test it. And as always, when you have two docs that don't exactly line up with each other, there are usually muddy areas.

Most of our HOs are unaware that the UPCA could trump the language in our docs. As far as I know, only the members of our Board and a couple of lawyers who live here know that the concept of Controlled Facilities is a part of our legal structure.

Je publie un degagement de toutes responsabilite. Read all posts at your own risk.
TimB4
(Virginia)

Posts:16005


12/05/2014 9:19 PM  

Here is a link to it.

That act has the following definitions:

"COMMON ELEMENTS." Common facilities or controlled facilities.

"COMMON FACILITIES." Any real estate within a planned community which is owned by the association or leased to the association. The term does not include a unit.

"CONTROLLED FACILITIES." Any real estate within a planned community, whether or not a part of a unit, that is not a common facility but is maintained, improved, repaired, replaced, regulated, managed, insured or controlled by the association.

KerryL1
(California)

Posts:5852


12/05/2014 10:51 PM  
I'll think about this more tomorrow, but for first glance, I 'd say "controlled facilities" are what we in CA call "exclusive use common areas," which can or cannot, depending on the governing docs be repaired, maintained, etc., by the HOA, and the HOA can make rules about it"
HeleneN
(Connecticut)

Posts:84


12/07/2014 12:08 PM  
First, let me say 'yes' to your question. Under CIOA Common Elements in our Docs mean the same as it does in the state Statutes.

However, I found the topic quite interesting and hope others will chime in. I live in a Condo Assoc. organized under the CIOA. As unit owners each one of us owns a free standing house with approximately 7000 Sq. feet of land. We also own an equal share in the Common Property (Common Elements). The Assoc. is responsible for lawn care and snow removal regardless of whether it's on Common property or unit property. The Assoc. carries insurance on the common property only. Each unit owner is required to carry Homeowner's Insurance on their property.

Currently there is a move on to change our Declaration to require the Assoc. to be in control and responsible for all property except the interior of our homes. The membership seems split and it has become a contentious issue. A majority of the owners thought that's what they were buying anyway.

After reading up on Controlled Facilities it appears that's what we will become if the proposed changes to the Declaration are passed. I can't find anything in CIOA of Ct. that addresses this. First off, it seems to me the Assoc. would have to carry insurance on all the units otherwise all the unit owners could become responsible for any insurance claims arising out of any law suits for damage or life that occurs at another property.

Comments please.
KerryL1
(California)

Posts:5852


12/07/2014 12:33 PM  
What changes might your Board make given your extended reach as a board, NpS?

Do any of your governing state statutes use the phrase "controlled facilities, Helene?" What are the pros & cons of having your HOA be responsible for the exterior of every detached home?

Along with exclusive use common areas, as used in CA, I've seen "exclusive use common elements" at the site. Our exclusive use common areas in our high rise are:

(1) Our balconies, which we must keep clean and there are HOA rules about what may/may not be placed on them.

(2) Our underground garage parking space(s). The HOA has rules about them, e.g., fluid leaks must be cleaned up; the HOA maintains them

(3) Our storage lockers (cages) that are within common area large storage rooms in our garage levels. The HOA repairs/replaces the wooden slat doors to each locker and makes rules about what may not be stored in them, e.g., explosives. We provide our own locks.

the exterior of our high rise is entirely common area and the HOA insures it and maintains it
KerryL1
(California)

Posts:5852


12/07/2014 1:05 PM  
PS: All of the above exclusive use common areas are deeded to individual condos
BobD4
(up north)

Posts:904


12/07/2014 10:37 PM  
Posted By HeleneN on 12/07/2014 12:08 PM
. .. The Assoc. is responsible for lawn care and snow removal regardless of whether it's on Common property or unit property. ... Currently there is a move on to change our Declaration to require the Assoc. to be in control and responsible for all property except the interior of our homes. The membership seems split and it has become a contentious issue. A majority of the owners thought that's what they were buying anyway. Comments please.




Would you miss having (albeit regulated) choice & control of flowers, trees, songbird attractors etc.and their placements ? Would you loose control of the exterior totally - colours, the differentiators ... Would you gain by 'neglecters' or 'natural landscapers' being attempted brought into uniformity ?
NpS
(Pennsylvania)

Posts:3125


12/08/2014 7:07 AM  
Thanks all. I too find the topic fascinating and would like to see where we can take this conversation. I am especially interested
in the similarities and differences under different statutory structures in your states.

Let me start by providing a few more definitions that you can find in the PA code that Tim appended to his post:

"LIMITED COMMON ELEMENT." A limited common facility or a limited controlled facility.
"LIMITED COMMON FACILITY." A portion of the common facilities allocated by or pursuant to the declaration or by the operation of section 5202(2) or (3) (relating to unit boundaries) for the exclusive use of one or more but fewer than all of the units.
"LIMITED CONTROLLED FACILITY." A portion of the controlled facilities, other than controlled facilities which are themselves part of a unit, allocated by or pursuant to the declaration or by operation of section 5202(2) or (3) (relating to unit boundaries) for the exclusive use of one or more but fewer than all of the units.

These definitions go even further than my original post by adding the condition that Common Elements, Common Facilities, and Controlled Facilities may be designated for limited use by less than all of the members.

Kerry, you asked what changes our board might make given the extended reach. For us, the one area I can think of is trees. Our property was overplanted by the developer with cheap, fast growing trees nearly 30 years ago. The HOA prunes and removes trees. Over the last 3 years, we have reduced our tree inventory by nearly 25%. We hired an arborist and a landscape designer who advise us, but the board decides what actions to take (as always with input from our HOs).

There are 4 areas where we can get HO pushback:

1. When a tree is designated for removal, we allocate a portion of the cost to one or more HOs if the tree is within 15' of the footprint of their houses. We use this 15' rule of thumb because we have no way to distinguish between common ground and private ground. If HOs want to challenge that a tree within 15' is not on their private property, they can have a survey done at their own expense - if correct, the HOA will absorb the entire cost of tree removal. (Never really happens because the cost of a survey would probably be more than their portion of the tree removal cost).

Applying the statutory regime, I would say that we are treating these trees as Limited Common Elements without distinguishing whether they are Limited Common Facilities or a Limited Controlled Facilities. Note that the statute does allow costs to be allocated to the specific beneficiaries of the Limited Common Elements and not across the entire community (Statute defines it as a "Limited Common Expense").

2. When HOs do not want a tree removed, they will generally rely on our 15' rule of thumb to claim ownership. Some will get their own arborist to say that the tree does not require removal. But of course their arborist is looking only at a single tree and not making an evaluation of our entire tree inventory and how we can accomplish our community-wide revitalization efforts.

Applying the statutory regime, our position here would be that if the tree is in fact on private property, it would be a Controlled Facility merely because we have been maintaining it at HOA expense for decades.

3. Sometimes next-door neighbors disagree on whether a tree that is within 15' of both of their homes should be removed. One says the tree is dangerous. The other says we have an obligation to prune the tree to his satisfaction. Some of these conflicts have bogged us down for a year.

Applying the statutory regime, we would have a legal basis to make the appropriate judgment call without having to deal with two HOs claiming that the tree is on their land.

4, After reducing our tree inventory, we will begin the process of planting new appropriate sized trees this coming year. We have already begun to receive HO comments that our plan for the community favors some lots and not others.

We haven't thought through the implications of how we might apply the statutory regime under these circumstances.

I doubt that we will present this statutory regime to our community, not because we want to hide anything, but because we think it will go over the heads of most of our residents who come to meetings. For those who don't attend (the majority), I think we would confuse rather than clarify, which we don't want to do. On the other hand, we would like to have a clearer picture for ourselves of how we might apply the statute.

Very interested in hearing more from the rest of you not just about my situation but also yours.

Je publie un degagement de toutes responsabilite. Read all posts at your own risk.
BobD4
(up north)

Posts:904


12/08/2014 8:40 AM  
"There are 4 areas where we can get HO pushback :

1. When a tree is designated for removal, we allocate a portion of the cost to one or more HOs if the tree is within 15' of the footprint of their houses.

We use this 15' rule of thumb because we have no way to distinguish between common ground and private ground.

If HOs want to challenge that a tree within 15' is not on their private property, they can have a survey done at their own expense - if correct, the HOA will absorb the entire cost of tree removal. (Never really happens because the cost of a survey would probably be more than their portion of the tree removal cost)...."


The idea of systematic, sustainable landscaping -bought into by as many owners as possible - isn't a bad idea at all. But 2 concerns to me are that

1-Unilateral cutting may be occurring without benefit of monumented survey boundaries ("..we have no way to distinguish between common ground and private ground." This scares me including : "we are cutting unless you as kvetching homeowner prove our trespass ! "

and

2- What now defines such a tree's "location" and under how many layers of applicable governing laws/by-laws / onsite HOA documents ?

This may include the judicial issue "Is the tree's location defined merely at grade level or something else ?" I raise this because in our jurisdiction inner city battles between tree-loving and tree-cutting neighbours have triggered a major judicial criteria redefinition - of what triggers a particular tree's ownership. The revised judicial interpretation of criteria "tree trunk" now extends from at-grade root ball now all the way upwards to first branch ie not just root ball at grade. This tends to favour the tree-maintainer big time, & lawyers ready to pounce on neighbour wars.
NpS
(Pennsylvania)

Posts:3125


12/08/2014 5:03 PM  
Thanks Bob

1. Lack of monumented survey boundaries. We believe that we are covered on this if we take the position that these are Common Facilities if on land owned by the HOA and Controlled Facilities if on land owned by an individual HO. And we take the Controlled Facility position because the responsibility for maintenance falls on the HOA.

Our position is not that we are cutting unless you can prove trespass. Our position is that we are cutting if our arborist considers this tree to be at-risk based on the size of the tree, its health, its proximity to the houses, and our current pruning practices. (Under our current pruning practices, we no longer prune a tree every 3 years. We push it to 6 if we can.) We think that the statutory existence of the Controlled Facility designation gives us this capability.

2. How many layers. Good point. However we have a different can of worms to worry about. While we are comfortable that the perimeter boundaries of our community are accurate, the developer didn't do such a good job on the location of houses. As built, any interior boundary line may be off by as much as 5' in any direction. It could be that a house is partially build on HOA-owned land or another HOs lot. We aren't interested in finding out if we don't have to. Even so, we think that the concept of Controlled Facilities allows us to circumvent those hugger-cutter disputes by putting the decision in the hands of the HOA. This is the "extended reach" of the statute that I was referring to in my earlier post.

We are not that certain how, under the statute, to characterize our new tree plantings. Unlike tree removals which are now in their third year, tree planting are about to begin. Would appreciate your thoughts.


Je publie un degagement de toutes responsabilite. Read all posts at your own risk.
JohnC46
(South Carolina)

Posts:7820


12/08/2014 5:40 PM  
Posted By HeleneN on 12/07/2014 12:08 PM
First, let me say 'yes' to your question. Under CIOA Common Elements in our Docs mean the same as it does in the state Statutes.

However, I found the topic quite interesting and hope others will chime in. I live in a Condo Assoc. organized under the CIOA. As unit owners each one of us owns a free standing house with approximately 7000 Sq. feet of land. We also own an equal share in the Common Property (Common Elements). The Assoc. is responsible for lawn care and snow removal regardless of whether it's on Common property or unit property. The Assoc. carries insurance on the common property only. Each unit owner is required to carry Homeowner's Insurance on their property.

Currently there is a move on to change our Declaration to require the Assoc. to be in control and responsible for all property except the interior of our homes. The membership seems split and it has become a contentious issue. A majority of the owners thought that's what they were buying anyway.

After reading up on Controlled Facilities it appears that's what we will become if the proposed changes to the Declaration are passed. I can't find anything in CIOA of Ct. that addresses this. First off, it seems to me the Assoc. would have to carry insurance on all the units otherwise all the unit owners could become responsible for any insurance claims arising out of any law suits for damage or life that occurs at another property.

Comments please.




Helen

I also find the subject quite interesting. Your CIOA (in CT) and my HOA (in SC) share a lot in common as to what the association is responsible for. It is late and I have been drinking plus I have a early tee time tomorrow so I will not comment at this time but do expect some posts and comments. One tip to start with is be careful of various state laws. PA to CT to SC can vary widely as can ones association's docs even within a specific state.

More to follow.






HeleneN
(Connecticut)

Posts:84


12/11/2014 2:20 AM  
NPS

Under your arrangement who carries insurance on The Controlled Facilities that are owned by the unit owner?

Helene
PegM1
(Pennsylvania)

Posts:4


10/30/2018 12:08 PM  
Interesting topic! I apologize for the length of this message but it seems there's not easy way to explain the situation. Here are my questions and any feedback is greatly appreciated.

Background: We are a Pennsylvania 55+ active adult community, single family homes and some duplex, triplex garden homes. New community, 3 years old. A big selling point for the 55+ residents is the promise of all exterior maintenance of a unit being covered by HOA fees (excluding doors and windows). Declaration reads that roofs and siding and "façade" of unit is the responsibility of HOA. Declaration: "Exterior maintenance is responsibility of the Association, with the exception of windows and doors." The definition of "Maintenance" in the Declaration includes preventive maintenance.

Question 1: Are the roof and siding considered Controlled Facilities since they are regulated (color of siding, roof materials)and repaired by the HOA?

Question 2,3,4: The HOA Board and management company are telling us they do not have responsibility for inspection, cleaning and maintenance of the gutters/downspouts. The Reserve Study we had done lists the gutters/downspouts as Common Elements. The Declaration and PA Statute indicates that the Association is responsible for the maintenance of common elements. The Declaration does not exclude the gutters/downspouts from HOA maintenance responsibility (only windows and doors are the exterior elements specifically excluded from HOA responsibility). The HOA and management company have said the HOA is responsible for repairing and replacing the gutters/downspouts but take the stand that senior residents should clean and inspect their own gutters or spend money hiring someone to do it. They claim the gutters/downspouts are Limited Common Element, yet our other Limited Common Elements (driveway, entrance walkway) are not repaired or replaced by the HOA. How can the gutters be both Common Elements and Limited Common Elements? Are the gutters/downspouts considered Common Facilities (being as they are repaired and replaced by the HOA)? If the roof and siding and "unit façade" are all indicated as the responsibility of the HOA in our governing documents, why would the gutters/downspouts not be under that responsibility also?


Thank you!
KerryL1
(California)

Posts:5852


11/02/2018 3:25 PM  
Better to start a new pst, Peg--this on's very old.

say, I miss NpS.
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Does Common Elements mean the same thing in your Docs and in your Statute?



Get 2 months of free community web site hosting from Community123.com!



News Articles Provided by: Community Associations Network
News, articles and blogs about condos/HOA's

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
HindmanSanchez Legal Notice:  (For messages posted by HindmanSanchez) This message has been prepared by HindmanSanchez for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Members of HOATalk.com should not act on this information without seeking professional counsel. Please do not send us confidential information unless you speak with one of our attorneys and get authorization to send that information to us. If you wish to initiate possible representation, please contact an attorney in our firm. Our attorneys are licensed to practice law in the state of Colorado only.

Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement