One of the unique features of living in a condominium is sharing responsibility as a group for the common elements of the property. In theory, a condo arrangement distributes the financial cost of upkeep for shared structures among all the members of the condo association. As part of this shared cost, condominium property is divided and categorized into property owned by the association and unit property owned by the individual.
However, association property can be further subdivided into “common elements” and “limited common elements.” How an area of condominium property is classified may change the respective rights and responsibilities of the association and its members, including whose insurance covers damage to each type of property.
In this post, we discuss how Florida courts have defined “common elements” and “limited common elements” and how that affects your insurance coverage as a condo owner.
What Is a Common Element?
Common elements are “the portions of the condominium property not included in the units,” according to Florida Statute §718.103(9). Some examples of common elements include:
- Amenities such as fitness centers, pools, and clubhouses;
- Shared common spaces such as lobbies, public walkways, and hallways;
- Utilities and infrastructure such as elevators, pipes, electrical systems, and heating and air conditioning equipment.
What Is a Limited Common Element?
The same Florida statute defines “limited common elements” as “those common elements which are reserved for the use of a certain unit or units to the exclusion of all other units, as specified in the declaration” (22). In other words, a limited common element belongs to the condo association but is nevertheless reserved for use by a particular unit.
What Is an Example of a Limited Common Element in a Condominium Project?
In Florida, balconies, parking spaces, storage units, and even areas of a shared clubhouse have been considered limited common elements; as mentioned above, the defining characteristic is that they are for the use of a single unit “to the exclusion of all other units.”
Is a Condo Balcony a Common Element?
When balconies are exclusive to a single unit, it seems obvious that they would fall under the definition of a limited common element. However, in Cedar Cove Efficiency Condo. Ass’n, Inc. v. Cedar Cove Properties, Inc., 558 So. 2d 475, 479-80 (Fla. 1st DCA 1990), a Florida appellate court held that limited common elements, such as balconies and patios, may fall under the responsibility of the association and not the unit owners. The ruling in Cedar Cove categorizes balconies as common elements rather than limited common elements.
The Cedar Cove case arose when a dispute developed about whether an association could levy an assessment over exterior balconies and doors. In identifying the responsibilities of the association and unit owners, the court found that “The Act’s definition of ‘limited common elements’ implies they are a subset of ‘common elements and therefore a ‘common expense’ properly within the scope of the association’s authority.”
Because the definitions imply that a balcony as a limited common element is effectively a subset of the common elements of the association, the association is therefore responsible for limited common elements. Further,
Sections 6.1 and 6.2 of the declaration of condominium authorize the association to levy an assessment to maintain and repair all unit exteriors and common elements. Even if the balconies and closet doors are not considered “common elements”, it is difficult to refute their classification as part of the unit exterior. The balconies and doors fall within the scope of the association’s broad authority to maintain condominium exteriors.
Even though limited common elements such as balconies and patios may be considered the responsibility of the association and not the unit, other movable personal property — furniture, for example — that is placed or installed on limited common elements generally remains the property and responsibility of individual unit owners.
This common-sense stance was confirmed in Costa Del Sol Ass’n, Inc. v. State, Dept. of Bus. & Prof’l Regulation, Div. of Florida Land Sales, Condominiums, & Mobile Homes, 987 So. 2d 734, 736 (Fla. 3d DCA 2008). Here, the court clarified that a condo association does not have even an insurable interest in the personal property that a unit owner individually purchases and retains exclusive rights over, even if they are placed in a limited common element.
To know where your insurance responsibilities as an individual condo owner fall, it’s important to understand how your condo association and local government interpret various laws.
Further Resources on Insurance Coverage Law
Navigating the complexities of insurance claims can feel overwhelming. Whether you’re facing unpaid claims or simply filing for the first time, our eBooks equip you with the crucial information you need to advocate for yourself with confidence.
- Filing A Property Insurance Claim
- Insurance Company Response Time
- What To Do When You Have a Denied/Underpaid Claim
- Wildfire Claims
- Flood Claims Handbook
- More Information on Hurricane Deductible and Policy Limits
- Condominium Hurricane Preparedness
Why Merlin?
To know where your insurance responsibilities as an individual condo owner fall, it’s important to understand how your condo association and local government interpret various laws. If you’re fighting an insurance company that won’t pay up, contact Merlin. With nearly 40 years of practice and $2 billion in recovered claims, our team stands by your side to ensure you can face any insurance challenge with confidence. Contact us today for a consultation, or read more about how we’re your trusted advocate.
