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. AustinAustin Law Firm LLC717.846.2246 phone717.846.2248 fax
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.
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.
Smith, Buss & Jacobs LLP
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Yonkers, NY 10704
60 East 42nd Street
New York, NY 10165