Published on: December 7, 2010
Park Terrace Condominium is a five story residential building containing 120 Units, 80 of which have balconies. The Master Deed states that the balcony adjacent to any Unit is part of the Unit and not part of the common areas. Additionally, the Master Deed described common areas and facilities as “All portions of the Buildings not included in any Unit … including … [t]he foundations, structural members, beams, supports, exterior walls… structural walls and their structural components contained entirely within any Unit.”
The balconies at the Condominium are extensions of the interior floor construction within the building and are supported by structural elements of the building. The balconies are recessed and arranged so one balcony is located directly above the balcony below. Due to noticeable deterioration of the balconies, a structural engineer determined the steel joists beneath and supporting each balcony slab, the wire mesh within the slab and concrete floor slab required repair and replacement.
Based on the engineer’s recommendation, the Board of Trustees commenced repairs and replacement of the balconies, assessing the costs to all owners as a common expense. Some unit owners were not pleased with the Board’s decision to repair the balconies as a common expense and brought suit in Superior Court. The unit owners bringing suit argued that based on the Master Deed balconies are not “common areas” but part of the Unit. Further arguing that since the language in the Trust stated that unit owners were responsible to repair their units, since the balconies were part of the unit, the balconies were the sole responsibility of the owner of the unit to which they were attached, including structural repairs, and should be paid for by those individual unit owners. However, the Association took the position that while the balconies were part of the unit, since the structural elements of the balconies are part of the common areas the balconies should be repaired by the Association with the cost assessed to all owners as a common expense.
The Court stated that the Master Deed was unambiguous, expressly stating that “structural components of the condominium are common areas, even if those components are located entirely within a Unit.” The Court further stated that the fact that the balconies are not “common area”, but part of the individual units is immaterial, the relevant question is whether the needed repair is structural in nature. The Court held that based on the fact that the repair involved structural components of the balconies, which are part of the common areas, the Association is responsible for repairs to the common area and the cost to repair the balconies are to be assessed to all unit owners as a common expense.
Based on the Court’s Decision, Boards must first determine the nature and extent of repairs to balconies in order to determine whether the costs for such balcony repairs will be assessed to the individual unit owner with the balcony adjacent to their unit or to all owners as a common expense.[Copy of Decision]