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socrateaser
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Researching the possibilities of using the "limited elements"

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Researching the possibilities of using the "limited elements" principle in treating small common areas in HOAs. Trying to see if the matter of responsibility for care and maintenance of these common areas (scattered among circle shaped lots) can be handled through the limited elements concept.
Submitted: 11 months ago.
Category: Legal
Expert:  socrateaser replied 11 months ago.
Hello,

I'm unsure of your question. Are you a homeowner trying to force the HOA to maintain the limited common elements, or the HOA trying to avoid maintenance?
Customer: replied 11 months ago.

I am an officer on the Board of Directors of Edgewood Mtn. II HOA. We are trying to refine our C,C&Rs and other governing documents so we can clarify a common practice (last 30 plus years) whereby each individual homeowner or two homeowners adjacent to this small common area assumed responsibility for care and maintenance. This has been a practice without major disputes; however, we see the potential for disputes, and would like to establish a fair and reasonable solution. Thank you. Barrie

Expert:  socrateaser replied 11 months ago.
Thanks for the clarification.

I have run an exhaustive search of the Westlaw® proprietary legal research system, looking for any relevant statutes, regulations or case law. Regrettably, there is nothing that provides a definitive statement of law concerning who is responsible for the maintenance of limited common areas in a homeowners association. For that matter, the condominium laws in ORS Chapter 100 do not expressly state who is responsible for the limited common elements, either. ORS 100.540 suggests that limited common element maintenance can be controlled by the bylaws, but it's not clear, and there is no interpretive case law.

Consequently, this issue is wide open for control via the covenants and bylaws of the community. The only restriction is that lot owners would have to approve an amendment of the covenants, to the extent that they would modify the current maintenance obligations, because that would be a contractual modification from what was originally agreed to by the lot owners at the time of their purchase. See ORS 94.540 for specific rules on amending covenants.

I'd really like to give you a more definitive answer, but this is as definitive as the law allows.

Please let me know if I can clarify anything or further assist.

Hope this helps.
Customer: replied 11 months ago.


Socrateaser:


Thank you. I sort of had the impression that we would not find much that explicitly deals with this. Your search of Westlaw sources adds to the information I have been able to gather. I understand what you have told me. I thank you for running this down as far as you could. Much appreciated!


Barrie

Expert:  socrateaser replied 11 months ago.
Thanks for your kind words. Best wishes with your project, and if you need further assistance, please let me know.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 34131
Experience: Retired (mostly)
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