Q:Less than a third of the condo units in a project have "sundecks" attached to the second story of the condo buildings. The condo declaration defines the decks as limited common elements assigned to the units they abut.
The problem is that the roofs under the sundecks are beyond repair. In order to replace the roofs and stop the leaks, the sundecks have to be removed. The board does not want want to replace them because of the cost. Certainly, the change would be a material alteration.
Is this something that can be approved by 75 percent of the owners, the vast majority of whose units don't have decks? Most owners of units with decks bought those units to increase their living space. It does not seem fair that others not similarly situated get to make the call.
– A.V.I., Hollywood, Fla.
A:I agree with you. I think this would be considered a Section 718.110(4), Florida Statutes, change, requiring unanimous consent of all owners as well as the record owners of any liens on the affected units, unless the declaration has some alternate provision regarding removal of the decks, which I doubt.
This is because, as limited common elements, the decks are "appurtenances" to the units to which they are assigned. An appurtenance is a fancy way of saying a right or interest that goes along with ownership of the unit. The board can't take those rights away without the consent of those with those rights, unless the declaration says otherwise.
Dancing around
a common-wall issue
Q:Our condo units are one-story double villas. We have one common wall with a roof mate. Our original condo documents track the state statutes. Who is responsible in case of loss by fire, windstorm or hurricane to replace all the interior walls (room divider walls made of sheet rock and studs), closet doors, swinging doors and hardware, floor and ceiling moldings, electrical wiring and switch plates and electrical outlets in the interior walls?
I know and understand that the owner is responsible for the floor, wall and ceiling coverings, kitchen and bath cabinets, countertops, plumbing fixtures and electrical fixtures. All additions and improvements are also the owner's responsibility.
I have asked everybody, including the state agency governing condos, insurance companies, lawyers and property appraisers, and they all dance around the answer. Do you have a definitive answer for who is responsible to insure the room-divider walls and such related items? Is it the unit owner or the association? No dancing, OK?– T.D., via email
A:I like dancing. I often feel like Ginger Rogers, tap-dancing backwards in heels. But to answer your question, in the event of a casualty, I think it would be the association's responsibility to insure those items.
Finally, I want to thank everyone who wrote to let me know they appreciated my personal experiences in community association law as I recounted them in this column. I was proven wrong when I said people who are pleased are usually silent — except for the person who said that I must be dying, on drugs, or "significantly inebriated" to write about myself. I got a chuckle out of that one.
Tamela Eady Wiseman is a Florida Bar board-certified real estate attorney with 25 years' experience. Subjects discussed her columns 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. Email questions for possible inclusion in a future column to tew@lawbywiseman.com.
