Who is Responsible for Limited Common Elements?

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.

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robert weber - February 27, 2012 4:57 PM

I am wondering if this puts to rest who is responsible where ac units are located on a condo roof, one ac unit for each condo unit, and one of the ac units is vandalized. Condominium made best effort to lock roof, but for some reason this one ac unit on far side of roof had parts taken from it. Sounds like since this is limited common area the unit owner would be responsible. I'm speaking of a situation in Broward County, Florida.

Tina Bushner - July 25, 2012 9:24 AM

What about when a limited common area is not addressed in the Declaration, plat map, bylaws, ANYWHERE? Also, when the LCA is a strip of land? We have a nightmare on our hands at this time because the strip of land has been fenced in for over 40 years; and then again just recently by a 8ft masonary fence. Maintenance has NEVER BEEN DONE by the HOA.

Diane Rodanhisler - February 11, 2013 11:57 AM

When a condo association mandates that glass sliding doors, vinyl windows or hurricane shutters be installed on the outside railing of a patio that is within the unit to prevent rain from entering the patio area, is this glass door area now the exterior wall of the unit? Is the previous glass door that was 6 feet from the railing now an interior glass door of the unit?

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