8.11 Common Areas

• Library: South Carolina Community Association Law: Condominiums and Homeowners Associations (SCBar) (2019 Ed.)

8.11 Common Areas

A. Definition of Common Areas

The terms "common areas" and "common elements" are generally used interchangeably. One commentator has said that basically, anything that anyone who is a member of a homeowners association may use in common with the other members is a common area or element.⁶¹¹ The Uniform Common Interest Ownership Act (UCIOA) defines "common elements" in a homeowners association as property owned or leased by the association.⁶¹² It defines "limited common element" as a portion of the common elements that is reserved for the exclusive use of one or more, but fewer than all, of the members of the association.⁶¹³ There is no statutory definition in South Carolina of common areas or elements for a homeowners association, as opposed to a condominium,⁶¹⁴ thus the definition of the term will generally be found in the CC&Rs. For example, in one case the common areas were defined as the areas of real property deeded or sold to the association.⁶¹⁵ In another case the CC&Rs provided that the common areas consisted of all roads and all other areas in the community with the exception of the actual land located under the structures of the homes.⁶¹⁶ Note that this definition does not address ownership of the common areas. Assuming the common areas have been deeded to the association,⁶¹⁷ it would be simpler to define them as does the UCIOA.

The distinction between real property owned by the association and that owned by its members should be clear, but it can be become blurred, especially where a member has exclusive use of a portion of the common areas, that is a "limited common area." For example, in Cedar Cove Homeowners Ass'n v. DiPietro,⁶¹⁸ homeowners had a wooden deck behind their house that was constructed by a previous owner. Part of the deck encroached onto the common area, but the association never objected. The homeowners received permission form the association president to replace the deck with a brick patio that would also encroach onto the common area. After the patio was substantially completed, a new board was elected. It was determined to enforce the covenants. The association, therefore, sought and obtained an injunction requiring removal of the brick patio. The association argued the patio trespassed on its property. The court, however, said the covenants governed and the charge of trespass emanated solely from those covenants. Under the covenants, construction of structures on a property required association approval, however, it was presumed that a homeowner had fully complied with the covenants if the association did not disapprove of the structure or file suit to enjoin construction before its substantial completion. The association, said the court, could not "escape from its own lack of compliance with the restrictive covenants." There had never been a formal disapproval and no suit was filed to enjoin construction before the patio was completed. The homeowners were, therefore, entitled to the presumption of compliance. The injunction was, therefore, issued in error.

A vigorous dissent observed that a trespass may be accomplished by going beyond the consent given for the original entry and that by building a patio that encroached onto the common areas owned by the association, the homeowners went beyond the original consent for use and enjoyment of the common areas. The dissent noted that the homeowners conceded that they could not build a residence on the common areas, but could walk over them. To the extent that the patio encroached onto the common area, the encroachment constituted a trespass said the dissent.⁶¹⁹ The dissent has a point. If someone builds a structure on the property of someone else, short of a finding of adverse possession, wouldn't a court find that the structure belonged to the owner of the property on which it was constructed and that the owner had the right to tear it down?

Interestingly, in Kneale v. Bonds,⁶²⁰ the court directed that a mandatory injunction be issued for removal of an encroachment on common areas. In that case the defendant condominium unit owners began a 2,200 square foot addition to their condominium unit over a portion of the general common elements. The defendants alleged other property owners, including the plaintiffs, had also encroached on general and limited common elements and were, therefore, estopped from seeking removal of the encroachment. The court acknowledged that previous alterations had been made in violation of the documents, but the vast majority of those alterations were to limited common areas and were nonstructural. Although the plaintiffs may have acquiesced or even assented to those minor alterations, they did not, concluded the court, intend to waive their right to enforce the covenants related to alterations or variations of the...