Thursday, October 23, 2014

The Case of the Missing Building: (A General Common Area Element Conundrum)

Should Common Area Elements within HOA's be exempt from taxation?

The Building No One "Owns"

When is a Common Area Element no longer a Common Area Element? If one constructs a dog house, installs carpet, paints a number over its door, adds a mailbox, and receives Postal Delivery Service (not unlike the 1947 Christmas classic: Miracle on 34th Street) does the fact that it receives postal delivery make it an apartment?

In 1967, a duplex (with attached garage and carports) was constructed in western El Paso County. Per the recorded Condominium Map and the Condominium Declaration (1979) this duplex (with attached carport) was identified as a General Common Element “…for the lodging of janitors or caretakers of the property”. In 2008, the covenants were amended and this language was deleted. In 2011, an El Paso County District Court Judge affirmed that any relationship to the 1979 covenants was extinguished in 2008. Although an address was penciled in on the property plat map, a recent Colorado Open Records Request to both the El Paso County Assessor’s Office and Pikes Peak Regional Building Department revealed the following:

1)      No plans are on record for addressing.

2)      “PPRBD could not find plans for this building….” 

3)      Common spaces are not addressed by PPRBD.

4)      Since addressing does not exist for this structure, it was never assessed for taxation and valuation purposes.

5)      Labeled as “…existing duplex over garage….” The “Building was platted as a carport with General Common Element space….”

6)      Certificates of Occupancy were not issued prior to 1999.

7)      Any work done after the permit would require inspections.

RBC104.1.1 Existing Buildings. Buildings or structures to which additions, alterations or repairs are made shall comply with all the requirements for new buildings or structures except as specifically provided in this Section. The value or valuation of a building shall be the estimated cost to replace the building in-kind, based on current replacement costs as determined by the Building Official.

In 1993, this structure was modified for residential use. Since this time the association has leased out the two (2) units to tenants as a means of supplemental revenue. To date, a property valuation has never been conducted. Therefore, neither the Association nor any of its members have paid property taxes on this structure.  

RBC110.1.1 New Use or Occupancy. No new building or structure or portion thereof requiring a permit in accordance with RBC105 of this Code shall be used or occupied and no change in the existing occupancy classification of a building or structure or portion thereof shall be made until the Building Official has issued a certificate of occupancy therefor as provided herein.

In summary, the existing building was never platted as a duplex, but rather as a carport only. As such, the addresses are non-existent and therefore the building does not exist in any public records or maps making any response by emergency personnel problematic. Therein lies just one of many issues related to this non-existent building. Not to mention that it was never platted for condominium/residential living space and therefore may not be suitable for living space or properly covered under the existing Commercial General Liability Policy.

RBC104.8 Modifications. Whenever there are practical difficulties involved in carrying out the provisions of this Code, the Building Official may grant modifications for individual cases, provided the Building Official shall first find that a special individual reason makes the strict letter of this Code impractical and that the modification is in conformity with the intent and purpose of this Code, and that the modification does not lessen any life safety or fire protection requirements or any degree of structural integrity. The details of any action granting modifications shall be recorded and entered in the files of the Building Department.

Based upon this information, what would you do?

Make the Call:

Q. General Common Elements: In your opinion, does this unit qualify as a General Common Element?

Q. Inspections: If the building was never inspected and/or platted for residential use as a Condominium Unit, should the Association cease its practice of leasing until properly inspected and a CO issued?

Q. Health/Safety: If the structure fails to meet current code for Fire & Safety, Lead Based Paint, Aluminum Wiring, etc., as an Association Manager, what would you advise as a Plan of Action?

Q. Risk Management: If a property valuation does not exist, what would be your recommendation regarding insuring the property has proper coverage?

Q. Financial: If bringing the building up to code is not a financial reality, or it is condemned by the Pikes Peak Regional Building Department, would you recommend its demolition?