Common elements

Chapter 718 defines common elements by subtraction. Section 718.103(9) says they are “the portions of the condominium property not included in the units”, so the definition only works once the units have been located.

The units come from the declaration. Section 718.103(31) defines a unit as a part of the condominium property subject to exclusive ownership, and adds that a unit may be in improvements, land, or both, “as specified in the declaration”. The declaration of condominium, in turn, is the instrument by which the condominium is created, as amended over time, under 718.103(16).

Set the two definitions side by side and the result follows: the statute names no roof, wall, walkway or window as a common element. Whatever the declaration does not place inside a unit stays in the common elements, and under 718.103(12) each unit carries an undivided share of them. Whether a particular roof or pool deck is a common element in a particular building is answered by that building's declaration, not by a general rule.

Florida Statutes 718.113(1) assigns the upkeep: “Maintenance of the common elements is the responsibility of the association, except for any maintenance responsibility for limited common elements assigned to the unit owner by the declaration.” The association must also provide for the maintenance, repair and replacement of the condominium property it is responsible for “pursuant to the declaration of condominium”.

The exception carries real weight. Limited common elements are common elements reserved for the use of a certain unit or units, as the declaration specifies, and the declaration may provide that the owners entitled to use them maintain them.

That is why the roof has its own page, who is responsible for roof cleaning in a condo. The water-use and association rules around a walkway or pool deck job are set out in the association rules on the paver cleaning page; which of those surfaces are common elements in a given building is still the declaration's to say.

Two more parts of 718.113 set limits on the common elements. The first is aimed at unit owners: “A unit owner shall not do anything within his or her unit or on the common elements which would adversely affect the safety or soundness of the common elements or any portion of the association property or condominium property which is to be maintained by the association.” Whether a given act falls under that sentence is the association's and its counsel's question.

The second is aimed at alteration itself. Under 718.113(2)(a), “Except as otherwise provided in this section”, there may be no material alteration or substantial addition to the common elements except in the manner the declaration provides, and where the declaration sets no procedure, 75 percent of the total voting interests must approve before the work begins. The section does not define material alteration, so whether a change in a surface's look qualifies is for the association and its counsel; one version of that question, a sealer's sheen, is taken up in whether a wet-look sealer needs approval.

The first limit comes up again in whether a condo roof can be cleaned. And if an association moves to fine an owner, 718.303(3)(b) requires written notice and an opportunity for a hearing first.

A homeowners' association community has shared property too, but Chapter 720 uses another term for it. Florida Statutes 720.301(2) defines common area as “all real property within a community which is owned or leased by an association or dedicated for use or maintenance by the association or its members”.

The two words are not interchangeable. Common elements are defined against units and held in undivided shares by unit owners; common area is defined by who owns, leases or maintains the land, in a community of parcels rather than units. The maintenance rule in 718.113(1) is written for common elements, while a Chapter 720 community's members and association are governed by that chapter and the community's own governing documents under 720.305(1).