Ernest Manns and Loleta Manns v. Southwest Properties Council of Co-Owners A/K/A Southwest Properties Hoemowner's Association ( 2000 )

NUMBER 13-99-813-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

ERNEST AND LELETA MANNS

, Appellants,

v.

SOUTHWEST PROPERTIES COUNCIL

OF CO-OWNERS A/K/A SOUTHWEST

PROPERTIES HOMEOWNER'S ASSOCIATION

, Appellee.

___________________________________________________________________

On appeal from the 197th District Court of Cameron County, Texas.

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O P I N I O N

Before Justices Hinojosa, Rodriguez, and Kennedy⁽¹⁾

Opinion by Justice Kennedy

The sole unresolved issue in this case is whether balconies on second floor condominium units are "common elements" or "limited common elements" of the condominium regime or whether they are a part of the units to which they are attached for the purpose of determining who should bear the expense of repairs to them. If they are parts of the condominium units, then the owner of the condominium unit must bear the expense. If they are "common elements" or "limited common elements" of the condominium regime, then the cost of repairs must come out of the general condominium maintenance fund.

In January 1995 the Board of Directors of Southwest Properties Homeowners' Association determined that certain balconies of second floor condominium units were deteriorating to the point that they needed to be replaced. The Board decided that of the estimated cost of $500 for the replacement of each balcony, $300 would be paid by the unit owner and $200 would be paid by the Association.

Appellants, plaintiffs below, are the owners of five condominium units. They moved for summary judgment below alleging that the balconies were common elements or limited common elements and their motion was denied. Appellee, the Association, then moved for summary judgment to declare that the balconies were non-common, or private elements, and its motion was granted.

This dispute is governed by the provisions of Section 81 of the Texas Property Code⁽²⁾

and the enabling declaration for establishment of a condominium for Southwest Properties. Appellants argue as follows:

The apparent ambiguity is created by the use of the term "patio or balcony areas" in the definition of General, Elements found in Section 6 of the enabling declaration. The patio balcony areas are the spaces encompassed by patio or balcony structures (e.g. the fence surrounding the patio or the attached railings and concrete foundation of the second floor balcony). While the patio and balcony areas are clearly private to the condominium unit, the patio and balcony structures are clearly common, or limited common, elements. (emphasis in the original).

Tex. Prop. Code Ann. §81 (Vernon 1995).

The pertinent portion of Section 6 reads:

GENERAL, ELEMENTS: The "general common elements" of the property and of this project include, and are defined as all of the project land above described, and the buildings, structures, and improvements thereon, save and except the one hundred sixteen (116) individual condominium spaces contained in said multiple condominium building, each of the individual patio or balcony areas described in paragraph 1, subparagraph A, sub-subparagraph (2) on page 2, . . . (emphasis added)

We do not read the foregoing to support appellant's argument. For further directions we look to the provisions of section one of the enabling declaration which reads, in pertinent part:

1. DIVISION: Said developer, in order to establish said plan of condominium ownership for the hereinbelow described property and improvements, hereby expressly submit said property and improvements to the condominium regime established by the Texas Condominium Act, as now existing or hereafter amended and does hereby covenant and agree that it hereby divides said real property into the following separate freehold estates, to wit:

A. Separate Freehold Estate ­ Each of the one hundred sixteen (116) individual condominium units in said multiple unit condominium buildings, as hereinafter described, shall constitute a separate freehold estate and shall be more particularly described and shall include the following:

(1) Boundaries ­ each condominium space: The boundaries of each such condominium space shall be and are the interior surfaces of the perimeter walls, floors and ceilings of the living area, and shall also include the interior construction, interior dividing walls, partitions, appliances, fixtures and improvements which are intended to exclusively serve such condominium space, such as interior rooms, walls, floor and ceiling covering or finish, closets, cabinets, shelving, individual bathroom and kitchen fixtures, separate items or chattels belonging exclusively to such space which may be removed, replaced, disposed of or otherwise treated without affecting any other condominium unit, or the ownership, use or enjoyment thereof; and the space includes both the portions of the building so described, the real property thereunder, and the air space so encompassed excepting the common elements.

(2) Boundaries ­ Each individual patio or balcony areas: The boundaries of each individual patio or balcony area shall be and are the exterior surfaces of balconies, patios, porches, decks or stoops; and the space includes both the portions of the patio area so described, and the air space so encompassed, excepting the common elements.

The use of the words in (2), quoted above "the exterior surfaces of balconies..." does create some confusion. In the absence of more information on just what a balcony is we hold that the better interpretation is to hold that the second floor balconies are not a part of the common, or limited common, elements of the property. We so hold, and further hold that the trial court was correct in denying appellant's motion for summary judgment and granting that of appellee. We AFFIRM the judgment of the trial court.

NOAH KENNEDY

Retired Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 10th day of August, 2000.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. §74.003 (Vernon 1998).

2. The condominiums herein were created before January 1, 1994.