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Declaration Cannot Take Away Common Elements in a Condominium

The recent case of IconBrickell Condominium No. Three Association, Inc. v. New Media Consulting, LLC, 45 Fla. L. Weekly D2272a (Fla. 3d DCA 2020) is an interesting case discussing the common elements of a condominium where the trial court, affirmed by the appellate court, found that the Declaration governing a condominium violates Florida’s Condominium Act (Florida Statutes Chapter 718) because it “impermissibly divested residential unit owners of their undivided share in the common elements of the condominium.”   Because the Declaration took away common elements from residential unit owners, it was determined that doing so was contrary to the law.

The condominium at-issue consisted of residential units, certain commercial units, and a luxury hotel.  The Declaration attempted to minimize common elements owned by the residential owners by designating them as “shared facilities” owned by the hotel, even though the cost for these “shared facilities” were passed to residential unit owners.

One of the residential unit owners filed a lawsuit claiming the Declaration was violative of Florida’s Condominium Act by taking away common elements and reclassifying them as shared facilities owned by the hotel.  The appellate court agreed with a worthy discussion of condominium ownership and, importantly, the definition of common elements under Florida’s Condominium Act:

“A condominium unit is a hybrid interest in real estate, entitling an owner both to the exclusive ownership and possession of a unit and an undivided interest as a tenant in common with other unit owners in the common areas.” “The declaration of condominium, which is the condominium’s ‘constitution,’ creates the condominium and ‘strictly governs the relationships among the condominium unit[ ] owners and the condominium association.’ ” 

As condominium ownership is created only by statute, such acts also regulate the operation of condominiums. Accordingly, in Florida, all provisions of a condominium declaration must conform to the Act, “and to the extent that they conflict therewith, the statute must prevail.” 

The Act defines a condominium as “that form of ownership of real property created pursuant to this chapter, which is comprised entirely of units that may be owned by one or more persons, and in which there is, appurtenant to each unit, an undivided share in common elements.” As the shares are undivided, the separate sale of the common elements is prohibited. The condominium association is “responsible for the operation of common elements,” … and in mixed-use and residential condominiums, “the common expenses of the condominium and common surplus of the condominium shall be the same as the unit’s appurtenant ownership interest in the common elements.

Under the Act, the “common elements” consist of “the portions of the condominium property not included in the units,” … along with the following:

(b) Easements through units for conduits, ducts, plumbing, wiring, and other facilities for the furnishing of utility services to units and the common elements.

(c) An easement of support in every portion of a unit which contributes to the support of a building.

(d) The property and installations required for the furnishing of utilities and other services to more than one unit or to the common elements.

This language is clear and unambiguous, hence we “need not look behind the statute’s plain [wording] or employ principles of statutory construction to determine legislative intent.”  Despite this plainly penned legislative preemption, here, intrepidly mirroring the words of the Act, the Declaration designates all “property and installations required for the furnishing of utilities and other services to more than one unit or to the Common Elements, if any,” along with the “wires, conduits, pipes, ducts, transformers, cables,” residential lobby and elevators, and communal trash disposal systems as shared facilities. This recharacterization, and the resultant expropriation of undivided common ownership, indubitably contravenes the edict of the Act

IconBrickell Condominium No. Three Association, Inc., supra, (internal citations omitted). 

Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.





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