One of the most common issues that condominium associations address is determining whether the association or individual unit owners are responsible for the maintenance and repair of a particular part of the condominium property. In many cases, unit owners and associations alike assume that each unit owner is responsible for the property and utilities that serve only their individual units. Examples of this type of property often include air conditioning equipment, plumbing, and dryer vents, to name only a few. However, depending on the particular provisions included in a community’s declaration of condominium, these assumptions are often incorrect, which can result in legal disputes when repairs are needed.
Under Florida’s Condominium Act, condominium associations are generally responsible for maintaining all common elements within each condominium community. Based upon the basic definition of units and common elements, this means that every portion of the condominium property which exists beyond the boundaries of each individual unit (as defined in the declaration of condominium) is the maintenance responsibility of the association. However, the Condominium Act also provides certain exceptions to association’s general common element maintenance responsibilities. If a condominium’s declaration specifically identifies certain portions of the common elements as “limited common elements,” which are reserved for use by certain units to the exclusion of other units, the declaration can also assign the maintenance responsibility for those “limited common elements” to the units which have exclusive use rights.
So what if your declaration doesn’t define air conditioning equipment as a limited common element, which are almost always located beyond the defined boundaries of each unit? What if the plumbing which serves a single townhome condominium unit runs beyond the unit boundary, and connects to a water meter located on the general common elements? Can the declaration be amended to make these portions of the common elements the maintenance responsibility of individual unit owners? The short answer is yes. However, as with all amendments, care must be taken that the changes are done correctly
In order to reclassify a portion of the common elements which serves only one unit or group of units, Section 718.110(14) of the Condominium Act requires that the amendment be approved “upon the vote required to amend the declaration as provided therein,” or if no method of amendment is provided, by the approval of not less than two-thirds of the units. However, it is important to note that such amendments can only be approved in this manner if the common elements in question serve only one unit or group of units. If the common elements in question are “designed and intended to be used by all unit owners,” then the unanimous consent from all record owners in the condominium would be required.
In addition to reclassifying the property as limited common elements, the actual maintenance provisions in the declaration regarding the property in question would also need to be amended in order to transfer responsibility. Making one change within the other is insufficient. Finally, the declaration also needs to be reviewed by counsel to ensure no other provisions within the declaration contain conflicting language regarding the property being reclassified as limited common elements.
Reviewing maintenance responsibilities for condominium property, while common in practice, can often result in surprising answers for an association. Depending on the circumstances and property involved, it is possible for an association to amend its governing documents to reflect the expectations of the community.
Written by Adam W. Carls, Esq. Originally posted in Community Update by Becker and Poliakoff