By: Kelly McQueeney
Why is it important to know unit boundaries? It impacts, and can determine, both owners’ and the associations’ rights and obligations. For example, maintenance issues commonly arise where it becomes essential to know whether a certain component, like a pipe, balcony, or drain, is considered part of the “unit” in order to determine who is responsible for making the repairs.
To know whether components are considered part of the unit, we must first understand unit boundaries. Unit boundaries are determined by the Association’s governing documents, specifically the declaration and/or recorded plats and maps for the community. Therefore, to understand unit boundaries, we first look to the Association’s recorded declaration.
The Association’s declaration should provide a definition of “unit” as well as define the unit’s boundaries. If you live in a planned community, such as a single family, patio home, or townhome community, then you may encounter the term “lot” instead of unit; however, under the Colorado Common Interest Ownership Act (“CCIOA”) a lot is considered a unit.
A “unit” is defined in the CCIOA to mean a physical portion of the common interest community which is designated for separate ownership or occupancy and the boundaries of which are described in or determined from the declaration.
For post-CCIOA communities (i.e. common interest communities created on or after July 1, 1992), the declaration is required to contain a description of the unit boundaries. This may include a written description in the declaration itself and/or reference to a recorded plat or map.
Unit boundaries should clarify at which point the portion of the community at issue is part of the unit or part of the common elements. However, declarations are not always very detailed when it comes to specific components. In that case, post-CCIOA communities can rely on Section 202 of the CCIOA to help determine their boundaries.
C.R.S. 38-33.3-202 provides:
Except as provided by the declaration:
(a) if walls, floors, or ceilings are designated as boundaries of a unit, all lath, furring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, and finished flooring and any other materials constituting any part of the finished surfaces thereof are a part of the unit, and all other portions of the walls, floors, or ceilings are a part of the common elements;
(b) if any chute, flue, duct, wire, conduit, bearing wall, bearing column, or other fixture lies partially within and partially outside the designated boundaries of a unit, any portion thereof serving only that unit is a limited common element allocated solely to that unit, and any portion thereof serving more than one unit or any portion of the common elements is a part of the common elements;
(c) subject to the provisions of paragraph (b) of this subsection (1), all spaces, interior partitions, and other fixtures and improvements within the boundaries of a unit are a part of the unit;
(d) any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, and patios and all exterior doors and windows or other fixtures designed to serve a single unit, but located outside the unit’s boundaries, are limited common elements allocated exclusively to that unit.
If the declaration for your community conflicts with any portion of Section 202 of CCIOA then your declaration will control.
For pre-CCIOA communities (i.e., common interest communities created before July 1, 1992), unit boundaries will depend on the descriptions provided in the declaration and/or plat or map. Pre-CCIOA communities cannot rely on Section 202 of CCIOA.
For both pre- and post-CCIOA communities, if after reading the descriptions in the declaration and/or plat or map the community, as well as Section 202 if applicable, the association is still unclear as to whether a certain component is located within the unit boundaries then the Board should consult its legal counsel.
On the advice of legal counsel, communities may consider adopting resolutions or a maintenance and insurance chart, which do not conflict with the declaration’s unit boundaries, to help clarify owner and association responsibilities.
Please do not hesitate to contact an Altitude Community Law attorney at 303.432.9999 if you have any additional questions concerning Limited Expense Communities.