Assignment of Condominium Limited Common Element Use Rights

Morrell_Clinton

Clinton Morrell

Condominiums are comprised of “units” owned by individual owners and “common elements” owned collectively by all owners. Pursuant to Chapter 718, Florida Statutes, “units” include all areas designated as such in the particular condominium’s governing documents, while “common elements” includes all other real property of the condominium which is not included within the units. Typical examples of common elements include pools and clubhouses. Generally, all owners are equally entitled to utilize the common elements of the condominium. However, condominiums declarations frequently establish, and Florida law recognizes, a class of common elements referred to as “limited common elements,” which are portions of the common elements designated for the exclusive use of only one or a limited number of owners. Typical examples of “limited common elements” include storage areas, balconies, and assigned parking spaces. Importantly, the right to utilize limited common elements designated to a certain unit is said to be “appurtenant” to the unit, which means that the right to utilize a limited common element is tied directly to ownership of the unit and transfers along with ownership of the unit.

Occasionally, due to non-use or other reasons, a unit owner may desire to assign his or her unit’s appurtenant limited common element use rights to another unit. Prior to 2000, Florida courts held that a condominium unit owner was prohibited by Chapter 718, Florida Statutes, the Condominium Act, from transferring a unit’s appurtenant limited common element use rights to another unit. Brown v. Rice, 716 So.2d 807 (Fla. 5th DCA 1998). However, effective July 1, 2000, the Florida legislature amended Chapter 718 to establish a right of unit owners to transfer their units’ limited common element use rights to other units. The current version of Chapter 718 provides, at § 718.106(2):

(2) There shall pass with a unit, as appurtenances thereto:

(a) An undivided share in the common elements and common surplus.

(b) The exclusive right to use such portion of the common elements as may be provided by the declaration, including the right to transfer such right to other units or unit owners to the extent authorized by the declaration as originally recorded, or amendments to the declaration adopted pursuant to the provisions contained therein. Amendments to declarations of condominium providing for the transfer of use rights with respect to limited common elements are not amendments that materially modify unit appurtenances as described in s. 718.110(4). However, in order to be effective, the transfer of use rights with respect to limited common elements must be effectuated in conformity with the procedures set forth in the declaration as originally recorded or as amended under the procedures provided therein. This section is intended to clarify existing law and applies to associations existing on the effective date of this act…

(emphasis added).

Pursuant to this statutory provision, if a condominium’s declaration allows for the transfer of use rights to limited common elements, such transfers are valid and enforceable if the procedures set forth in the declaration are followed. Sinatra v. Bussel, 119 So.3d 473 (Fla. 2d DCA 2013). Absent provisions in the declaration allowing for transfers of limited common element use rights, and compliance with such provisions, an attempted transfer of limited common element use rights conveys only a license – or personal right –  on the part of the transferee. Brown v. Rice, 716 So.2d at 807. However, the license will not survive the sale of either unit involved in the transfer. Id. Accordingly, it is critical that a unit owner wishing to transfer his or her unit’s appurtenant limited common element use rights ensure that the condominium’s declaration allows for such transfers and that such transfer is made in full compliance with the requirements set forth therein.