Q&A: Replacing Terraces

Q Our condominium board of managers is planning to replace all the terraces in our condo, claiming they are common elements. Is that correct, or is each terrace the property of the unit owner? Should all the unit owners be assessed or only the ones with terraces?

—Curious Unit Owner

A “The answer to the question requires a review of your condominium’s governing documents (i.e. bylaws and declaration),” says attorney Marc H. Schneider of Marc H. Schneider, P.C. in Garden City, New York. “In that regard, the declaration will likely define the terrace as a limited common element. This is due in large part to the fact that the terrace appurtenant to each unit likely can only be accessed by the unit owner of the unit to which it is attached. You must then refer to the ‘Repairs and Maintenance’ section of your condominium’s bylaws. In many instances, the repair, maintenance, and replacement of a limited common element will be the responsibility of the condominium’s board of managers. For example, the bylaws of one particular condominium that my firm represents states the following with regard to repairs and maintenance:

“All maintenance, repairs and replacement to the general common elements and limited common elements, including, but not limited to...terraces...shall be made by the board of managers and the costs there of shall be a common expense…

“The next step is to look at the section within the condominium’s declaration which directs the manner in which common charges are to be assessed. Common charges are usually assessed to all unit owners based upon the percentage of the undivided interest in the common elements attributable to each unit. As such, in the particular instance that you inquired about, if the condominium’s board of managers decides to replace all of the terraces, it may do so and can also assess all unit owners for the cost of same. Each unit owner’s costs for the project will be based upon their percentage of the undivided interest in the common elements. The same would hold true if the condominium had to make a repair or replacement of one terrace. Since the cost is a common expense, it would be part of the condominium’s budget and every unit owner would be paying for a portion of this expense as part of his/her common charges.

“The only exception to the foregoing would be in the event the condominium’s governing documents require the unit owner to be responsible for the replacement of the terrace. In that event, the only way the condominium’s board of managers could require all terraces to be replaced at one time would be if the condominium’s board of managers determined they were all in need of repair. In such event, each condominium unit owner would have to be requested to make the necessary repair and/or replacement and would be responsible for the cost of same. If they did not make the repair, usually the condominium’s governing documents will then permit the condominium to make the repair and charge the particular unit owner for the cost of the repair. You should recognize, however, that in the event the unit owners are responsible for the repair, the condominium’s board of managers does have the right to provide requirements for the type of repair at issue as well as requirements for the contractor who would be making the repair. You should refer to the alterations, additions, improvements or repairs section to the condominium’s declaration as well as the architectural control portions of the same document for further guidance on this issue.

“However, more likely than not, the terrace is going to be a limited common element and the requirement for any decision regarding the repair of same will be that of the condominium’s board of managers.”

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Comments

  • Our condominium wishes to replace the waterproofing material on our limited common elements terrace. Is the building responsible to make sure there is a tile or decking put back to protect the roofing membrane ? Some owners claim it is up to the unit owners. The By-laws only say that the LCE are the responsibility of the Building, but does not say if they have to return to a similar condition.