Some residents have exclusive use of LCE sheds that are in our CCRs as appurtants to their units. None of them have been used by these residents in years. The board has been using them for storage. We have a waiver clause. Might we have to give them back?

I am unsure what is meant by “waiver clause” but for purposes of this response will presume it means the owners of the sheds have permitted the Association to use the sheds. Even if that is the case, ownership remains with the unit owners and they are entitled to use and possession when they want – subject to the terms of any agreement they entered into with the Association. 

Sara A. Austin
Austin Law Firm LLC

Each co-owner has a vested legal interest in the use rights to the LCE sheds. Those rights may not be reassigned without the written consent of the co-owner. If the co-owner wants to use the assigned storage space the board will need to honor that right.


Edward Zelmanski
Zelmanski, Danner & Fioritto, PLLC
Attorneys at Law
44670 Ann Arbor Road, Suite 170
Plymouth, Michigan 48170
(734) 459-0062    Fax: (734) 459-5313

Owners do not lose the benefit of Limited Common Elements by failing to use them. I expect that you have a “non-waiver” clause as well, which states that the failure to enforce a covenant does not constitute a waiver of that covenant. The net effect of the clause is that an owner can reclaim exclusive use of a Limited Common Element, but must first give reasonable notice to the Association of his or her intention to do so.

Kenneth Jacobs
Smith, Buss & Jacobs LLP
733 Yonkers Avenue
Yonkers, NY 10704
914-476-0600 X4102
60 East 42nd Street
46th floor
New York, NY 10165
212-688-2400 X4102