Chapter 4 - § 4.5 • LIMITED COMMON ELEMENTS

• Jurisdiction: Colorado

§ 4.5 • LIMITED COMMON ELEMENTS

A "limited common element" is a portion of the common elements allocated by the declaration or by operation of the specific CCIOA statute on unit boundaries for the exclusive use of one or more units but fewer than all of them.⁴⁵ The specific statute designates certain components as limited common elements unless the declaration provides otherwise.⁴⁶ It is important to remember that the word "limited" in the definition modifies "common elements." Limited common elements remain common elements and are, therefore, commonly owned — or owned by the association⁴⁷ — and are not a part of any unit.⁴⁸ However, although a limited common element is not part of a unit, a right of possession resides in the owner of the unit to which its use is designated and that owner might, therefore, have a cause of action for trespass to that limited common element, including against the association.⁴⁹

In general, the CCIOA requires the declaration to contain a description of any limited common elements,⁵⁰ other than those specified by the specific statute on unit boundaries or shown on the required map.⁵¹ More specifically, the declaration must — except for limited common elements described in statute on unit boundaries — specify to which unit or units each limited common element is allocated, and that allocation may not be changed without the consent of unit owners whose units are affected.⁵² However, subject to the declaration, a limited common element may be reallocated between or among units after compliance with a procedure set forth in the CCIOA.⁵³ That procedure requires that for limited common elements to be reallocated between or among units, the owners of those units must submit to the governing board an application executed by them for approval of the proposed reallocation.⁵⁴ A reallocation is not effective without approval of the governing board. A reallocation is effectuated by a recorded declaration amendment,⁵⁵ signed by the association and by those unit owners between or among whose units the reallocation is made.⁵⁶ The declaration must also contain a description of any real estate, except real estate subject to development rights, that may be allocated subsequently as limited common elements, other than those limited common elements specified by the statute on unit boundaries, along with a statement that they may be so allocated.⁵⁷

Any common element that has not been previously allocated as a limited common element may be allocated,⁵⁸ but only pursuant to provisions in the declaration made in accordance with a CCIOA statute. That statute requires the declaration to contain a description of any real estate, except real estate subject to development rights, that may subsequently be allocated as limited common elements (other than limited common elements specified in the statute on unit boundaries) together with a statement that those common elements may be so allocated.⁵⁹ The allocations must be made by a declaration amendment prepared, executed, and recorded by the declarant.

A distinction needs to be made between property that is a limited common element and property that is merely...