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What’s a ‘Common Element?’

April 6, 2012
By SYLVIA HELDRETH - Real Estate Law , Cape Coral Daily Breeze

Question: I'd like to purchase a unit in a condominium but my wife has trouble going up a step because of her disability. I asked the Realtor if we could install a little ramp and she said that no owner has the right to make a material alteration to the "Common Element." Can that be right? What is a material alteration? What's a "Common Element?"

Answer: Common Elements are portions of the property used by all the unit owners. Everything that is not part of a unit or a Limited Common Element is usually a Common Element. Land, foundations, slabs, roofs, perimeter walls, corridors, laundry rooms, common stairs, a building's lobby, trash areas, utility rooms and water mains are common elements.

Incidentally, a Limited Common Element could be any air conditioning or heating unit, chute, duct, wire, bearing wall or fixture, whether located within or outside of the boundaries of a unit which serve only that unit.

A material alteration is a change in form, shape, element or specification which is clearly or readily seen as affecting or influencing function, use or appearance. The installation of a ramp would be considered a material alteration.

Most condominium documents address restrictions about changing the Common Elements. If there are no provisions about relevant issues in the documents, the Condominium Act applies. If the documents do not address the procedure for material alterations in the Common Elements, 75 percent of the total voting interests of the association must approve the alteration. There are, however, more relevant considerations.

The Fair Housing Act was enacted as an amendment to the Civil Rights Act in 1968. Its primary focus was to prevent discrimination in housing but it was amended in 1988 to include discrimination based on disability including a handicap. A handicap is a physical or mental impairment which substantially limits one or more major life activities. This act applies to condominiums.

The act requires a condominium association to make reasonable accommodations for a person with a handicap to give that person equal opportunity to use and enjoy a dwelling. The act does not require that the association pay for the accommodation.

The determination of reasonableness is done on a case by case basis. An inquiry to the association board or the management company may be a simple first step that results in a simple solution. If your heart is set on purchasing this unit and the board is not responsive to making a reasonable accommodation, the advice of an attorney would be helpful to you.

Attorney Sylvia Heldreth is a certified specialist in real estate law. Her office is located at 1215 Miramar St., in Cape Coral.

This article is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.



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