Condominium property is often divided and categorized into association property and unit property. 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 will cover damage to each type of property.
To determine the type of property, Florida Statute §718.103 provides definitions for certain areas of condominium property:
(27) “Unit” means a part of the condominium property which is subject to exclusive ownership. A unit may be in improvements, land, or land and improvements together, as specified in the declaration.
(8) “Common elements” means the portions of the condominium property not included in the units.
(19) “Limited common elements” means 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.
Although limited common elements are exclusive in ownership, 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. In Cedar Cove, after a dispute developed on whether an association could levy an assessment over exterior balconies and doors, in identifying the responsibilities of the association and unit owners the court stated:
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. 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 that is placed or installed on limited common elements generally remains the property and responsibility of individual unit owners. After a Florida governmental agency had declared otherwise, another Florida appellate court set the record straight 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):
In the total absence of any cognizable legal basis for the inside-and-outside distinction drawn by the Division, which would as well apply to a barbeque or even a lounge chair placed on the patio, it is self-evident that this ruling, that the owner of all the sticks or incidents of ownership which make up the proverbial bundle of property rights is not its owner and that something or someone else is, cannot stand.
The court went on to find that the association would not even have an insurable interest in these items of personal property that a unit owner individually purchases and retains exclusive rights over, even if they are placed in a limited common element. As an individual unit’s property, the unit owner would be responsible for insuring.
Theses cases and statutes represent Florida law, and the law often varies in different states and jurisdictions, so please contact competent legal counsel for assistance with any analysis of insurance covering limited common elements.