In Michigan, condominiums consist of either units or common elements. Common elements are further subdivided into two categories: general common elements and limited common elements. Under most Michigan condominium documents, the difference between general common elements and limited common elements is important to determine who is responsible for maintaining, repairing and replacing damage to various areas of the condominium, which insurance policy applies (if any), and who has the ability to use and access certain areas within a condominium.
What may seem like a technical difference or mere legal jargon distinguishing general and limited common elements from one another may have significant repercussions for co-owners and associations alike in situations where there is damage to the condominium. While not always the case, most condominium documents specify that the association is responsible for the maintenance, repair and replacement of all general common elements. Typical documents also state the cost of maintenance, decoration, repair and replacement of all limited common elements shall be borne by the co-owner(s) of the unit to which the limited common element is appurtenant or for which the limited common element is assigned.
Similarly, the association’s responsibility for maintaining insurance on certain areas of the condominium is typically broken down by determining whether the area is a general or a limited common element. Most condominium documents specify that each co-owner is required to maintain insurance on the unit and that the association is required to maintain insurance on the general common elements. As for limited common elements, there are often overlaps in coverage where the condominium documents require both the association and the co-owners to maintain insurance.
THE MICHIGAN CONDOMINIUM ACT
The Michigan Condominium Act, MCL 559.101, et seq. defines the terms condominium unit, general common elements and limited common elements as follows:
MCL 559.104(3) defines “Condominium unit” as “that portion of the condominium project designed and intended for separate ownership and use, as described in the master deed, regardless of whether it is intended for residential, office, industrial, business, recreational, use as a time-share unit, or any other type of use”.
MCL 559.106(5) defines “General common elements” as “the common elements other than the limited common elements”.
MCL 559.107(2) defines “Limited common elements” as “a portion of the common elements reserved in the master deed for the exclusive use of less than all of the co-owners”.
Most master deeds further expound upon the above terms for any given project. These designations may vary significantly from one condominium to the next. For example, a site condominium consisting of only single family detached homes will have different classifications of general and limited common elements than a traditional condominium project with larger buildings housing numerous adjoining units.
Traditional condominiums differentiate between general and limited common elements, because buildings within the condominium contain more than one unit and therefore, there will be areas of the condominium that are intended for the use of more than one, but not all of the co-owners. A sample provision designating general common elements in a traditional condominium may include: common entryways, corridors, security systems, doors, windows, the common lighting system, electrical transmission lines, lighting fixtures on the exterior of the buildings, foundations, roof, supporting columns, unit perimeter walls, ceilings, driveways, parking areas, easements, electrical transmission system, elevator lobby and mechanical lift, fire suppression system, gas meter room and gas distribution system, the lobby, common hallways, stairs and stairwells, monuments and signs, and the sewer systems and water distribution system.
A sample provision designating limited common elements in a traditional condominium may include: air conditioning unit pads, balconies, fireplaces located in a unit, terraces, heating and cooling systems, the interior unfinished surfaces of the unit, the interior walls, ceilings, and floors between unit levels, each individual mailbox, designated parking spaces, storage areas designated for certain units, utility meters, windows, screens, and doors.
Many site condominiums will not have any limited common elements at all. Because there are no buildings containing more than one unit, site condominiums typically only have “units” and “general common elements”. In these situations, it is common to see the general common elements referred to simply as “common elements” or sometimes referred to as “common areas.” A sample provision designating general common elements in a site condominium may include: all land in the project excluding the units, electrical transmission systems, telephone systems, cable television wiring network, gas distribution system, water distribution system, easements, private roads, sewer systems, monuments and signs, and trees and landscaping not located within a unit.
When issues arise as to who is responsible for maintaining, repairing, decorating, replacing, or insuring an area within a condominium project, the master deed and condominium bylaws control. If your association realizes there is a conflict as to who is required to insure, maintain, repair or replace an area of the condominium, the association should have its documents reviewed by a community association attorney to advise on how to resolve the dispute. Similarly, if the documents do not accurately reflect how the board of directors envisions responsibility to be divided between the association and its co-owners, the association should consider amending the documents. Finally, if a dispute arises as to the responsibility for repairs, maintenance, or insurance of any portion of a condominium, an attorney should be contacted immediately to review the documents and provide appropriate legal advice to the board.
Brandan A. Hallaq is an attorney with Hirzel Law, PLC where he dedicates the majority of his practice to representing condominium associations and homeowners associations. He litigates cases involving defective construction, contract disputes, shareholder/member disputes, quiet title actions to determine interests in property, enforcement of restrictive covenants, real estate foreclosure actions, and bankruptcy matters representing creditors. He also has experience preparing documents for business and real estate transactions including purchase agreements, franchise agreements, loan/financing documents and commercial and residential leases and mortgages. In each year from 2018 through 2020, he has been recognized as a Rising Star in the area of real estate law by Super Lawyers Magazine, a designation that is given to no more than 2.5% of the attorneys in the State of Michigan each year. Mr. Hallaq obtained his Juris Doctor degree, cum laude, from Wayne State University Law School where he served as an editor on the Wayne Law Review. He can be reached at (248) 480-8758 or at firstname.lastname@example.org.