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Condo | HOA Lawyers

Assess the Situation: What is Considered a “Common Element?”

You may have read in the most recent CAI Law Reporter that an Association in Maryland was not authorized to suspend use privileges, absent such authority existing in the condominium declaration. Elvaton Towne Condominium Regime II, Inc. v. Rose, No. 33, Sept. Term 2016 (Md. Jun. 23, 2017). The basic facts of the case are the usual problem, a unit owner stops paying assessments for one reason or another and the association then notified the unit owner that their rights to use the pool were suspended until they were again current in their assessment payments. In the Elvaton case, the Maryland court reasoned that restricting the right to use the common element amounted to an unauthorized taking of the unit owners property, which the Association was not authorized to do absent some specific authority. The court held that the act provides that, except as provided in the declaration, the common elements are for the enjoyment of all unit owners and accordingly any restriction must be in a specific provision of the declaration.

Presumably, one would expect similar reasoning in Wisconsin based on the holding in the 2009 Apple Valley Gardens Association v. MacHutta Wisconsin Supreme Court case. In the Apple Valley case, the Wisconsin Supreme Court held that based on the Wisconsin Statutes use restrictions (preventing owners from renting their units) can be in either the Declaration or Bylaws. Accordingly, should a case arise in Wisconsin where the right to use a common element is suspended while assessments are unpaid, and assuming a properly worded use restriction existed in the Bylaws or Declaration of the Association, it’s expected that the courts in Wisconsin would uphold the restriction. However, because use restrictions are specifically authorized by statute – see 793.09 and 703.10 Wis. Stat., it’s presumed that placing such a right to prohibit use of the common elements in the rules may result in a finding similar to what occurred in Maryland. Consequently, if an association in Wisconsin is seeking to strengthen its enforcement or collection policy by prohibiting use of the common elements, it would be wise to amend either the Bylaws or the Declaration to allow for that authority.

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