Q: Our Gulf-side condo complex comprises two kinds of buildings: four-story “high-rises” and two-story garden apartments.
The walkways on the high-rises are now being replaced — a very expensive project. Management says Florida law requires the association to apportion the costs based upon the square footage of every unit, which means that the low-maintenance garden units are effectively subsidizing the high-rises (units in both kinds of building are roughly comparable in size.)
But Florida law states that square footage should be used to prorate the cost of “common elements.” Is management correct in assuming that the walkways on the high-rises qualify as “common elements?” - J.M., via email
A: In a condominium, who owns what can be confusing.
When you buy a condominium unit, you also purchase an undivided interest in the common elements. Common elements are the portions of the condominium property located outside the boundaries of the individual units. Building exteriors, elevators, roofs and stairs can all be common elements.
It is often assumed that the association owns the common elements. It does not, although it may own or lease real property, such as a unit which it has taken title to through foreclosure or a deed in lieu of foreclosure, or if it is a lessee under a recreational or other lease from the developer. That property, if any, is referred to, logically enough, as “association property.”
Walkways used to gain access to more than one unit are mostly likely common elements. To be sure, look at the condominium documents. The declaration of condominium should describe the unit boundaries. The survey exhibits attached to that declaration will graphically depict the units and the common elements (although that is not the kind of “graphic depiction” that may come to mind.)
The costs of maintenance, repair and replacement of common elements are shared by each unit in the condominium in proportionate shares that total 100 percent.
For condominiums created after April 1, 1992, the only lawful way to apportion those costs is to divide them equally among all units, or to use a percentage based upon the relative square footage of the units. You indicated that the square footage method has been used in your condominium.
Even though you feel that you are subsidizing this expensive walkway replacement project, the way the costs are being apportioned may be perfectly legal.
The only way the outcome could be different is if the walkways are either part of the units, which is unlikely, or are designated in the declaration of condominium as “limited common elements,” a legal subset of common elements.
A limited common element is a portion of the common elements that is assigned to one or more individual units for the exclusive use of those unit owners.
Examples are parking spaces, balconies and storage units. Unit owners can be responsible for the costs of maintaining and replacing a limited common element if the declaration so provides.
However, unless the declaration clearly requires the owner to maintain certain limited common elements, or provides that the association performs that work at the expense of the owners who have exclusive use of the limited common elements, the cost to maintain limited common elements remains a common expense, shared by everyone.
In your case, that would be by square-footage percentages.
Before the law changed in 1992, a developer could pick any way of dividing common expenses as long as the total equaled 100 percent. Some of those methods made no sense at all. Equal division or square footage methods work reasonably well when the improvements are similar. When the buildings in which the units are located are vastly different in construction, size, location or age, issues of “fairness” can arise.
Unfortunately, if what the developer chose was a legal method of dividing the common expenses, all owners are stuck with it. In most cases, it would take 100 percent of all owners and all mortgage holders to change the method of allocating those expenses. You can only imagine how easy it would be to get the consent of those whose shares of common expenses would increase.
FYI, the Florida Building Code defines a “high-rise” as a building with an occupied floor located more than 75 feet above the lowest level of fire department access.
Regulating HOAs
The other shoe has dropped for state regulation of HOAs.
Last year the Florida Legislature tasked the Division of Florida Condominiums, Mobile Homes and Timeshares with conducting a census of the number of properties governed by residential HOAs. Each HOA had until November of last year to register with the state.
By the most current count, more than 13,000 associations registered, representing more than 2.6 million homes or undeveloped lots. I am sure many more failed to register.
Many questioned why this information was being collected. While most observers guessed one main reason was to create an income stream for the state, we now know that was definitely a goal. A Senate bill (S 1348) was filed last week, which, if passed into law, would subject HOAs to the same level of regulation as condominiums, and require each HOA to pay $4 per home or lot annually to the state agency, which will be renamed the Division of Condominiums, Homeowners’ Associations, Mobile Homes and Timeshares.
A good idea or just more bureaucracy?
Tamela Eady is a Florida Bar board-certified real estate attorney with more than 25 years’ experience, concentrating her practice on community association and real estate legal matters. The subjects discussed in the above article are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Reader questions may be directed to Tamela Eady for possible inclusion in a future column via email to tke@eadylaw.com.
