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Owners share ownership of the common areas under a legal definition called an association.

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The structure of homeowners association is this: every owner owns a percentage share of the association -- perhaps its an equal share, or its a share based on square footage or some other pattern.

(The association's owners/ members elect a board of directors. The directors establish which role each will serve within the corporate structure. The board then represents the business interests of the owners. The structure is often as a corporation, and most often a non-profit corporation.

Owners pay assessments to cover the cost of operating the association: maintaining, preserving and protecting the association's assets.)

In short: the homeowners are the association, and the owners own a share of the common areas together with all other owners.

Ownership of Common Areas

The absolute ownership of property is described as fee simple. There is always an entity that holds the fee simple to real property. The entity that owns or holds the fee simple is said to hold title. The identity of who holds legal title to real property can be determined through research at the land records office.

There are many types of projects that include common areas and there are many different types of common areas ranging from simple conservation land to high maintenance facilities such as gyms, pools, Golf courses, etc. When a planned community is established that includes common areas, there are different ways the title to the common areas can be held for the benefit of the lot or unit owners. Common areas can be part of a condominium project, a town house development where each unit owner owns its strip of underlying land, a vacation community or a subdivision with separate lots and separate dwellings. The documents that established the community must be examined to determine who holds legal title to the common areas in that particular community.

In the case of condominiums, generally, each unit owner acquires a fractional fee interest in the common areas that cannot be separated from the unit. When the unit is sold the fractional interest in the common areas goes along with it. If phasing rights were reserved by the developer in the master deed, as more units are added the fractional interest in the common areas is decreased for all unit owners.

In the case of a subdivision with common areas, there are different ways the common areas are held and managed for the benefit of all the lot owners, especially if the common areas consist of a green buffer that can be used for passive recreation. Most often, the developer conveys the fee in the common areas to a homeowner's association by deed once the lots have all been sold. The HOA then manages the common areas for the benefit of the lot owners according to a set of restrictive and protective covenants, rules and regulations and other provisions, that can be amended from time to time and that allow assessments for repairs, improvements, and maintenance. That type of scheme is also used when the common areas include more formal facilities such as pools and tennis courts. In some cases the common areas are conveyed to a trust and managed as set forth above.

In some cases, the lot owners simply acquire a fractional fee interest in the conservation areas based on the number of lots, especially when there are no maintenance fees. In some cases the lot lines are extended to partition the common areas surrounding the lots, that portion is conveyed to each lot owner and each lot owner is granted the right to use the common areas that abut all the lots and that right "runs with the land".

In some cases the developer fails to make sufficient provisions for the management and legal ownership of the common areas once the developer is out of the picture. Sometimes legal title lingers back with the developer. A buyer's attorney must review the governing documents carefully to determine the buyer's future obligations, if any, and to make certain the management and ownership of the common areas is well documented.

You need to check the title for the particular project to determine who holds title to the common areas.

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Q: Who owns the common areas the homeowners or the homeowner's association?
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