Question: I am selling my condominium unit. I bought a boat slip at time I bought my unit, which is a limited common element. I have a possible buyer, but the buyer is not interested in the boat slip. Can I sell the unit and boat slip separately?
Answer: What you are suggesting can be a trap for the unwary. A limited common element is a part of the common element set aside for exclusive use of less than all units. Your boat slip has been set aside for exclusive use of your unit. Once established as a limited common element, it goes with your unit and will pass as a right of your unit when you sell your unit. A limited common element is an appurtenance to a unit.
Limited common elements could be a covered garage, boat slip, cabana or other portions of the condominium property.
Limited common elements can be regulated by the condominium association, but cannot be assigned by the association because they are appurtenances to units. Until 2007, unit owners could not convey limited common elements separately from units, because the courts concluded limited common elements were attached to individual units.
In 2000, the legislature amended Florida Statutes to allow unit owners to transfer limited common elements to other units or unit owners to the extent authorized by the declaration of condominium. The transfer must be in accordance with procedures and authorizations set forth in the declaration as originally recorded or as amended. The statutes make it clear that since limited common elements are appurtenant to units, they cannot be conveyed to someone who does not own a unit in the particular condominium.
A problem arises when a condominium unit owner with appurtenant limited common elements gets an offer to purchase the unit without the limited common element. The unit owner accepts the offer and closes on sale, planning on selling the limited common element to someone else after closing. But, the limited common element goes with the unit at time of closing, and after the unit is sold, the former owner has no remaining right in the limited common element or ability to convey title to it. This was painfully brought home to such a unit owner in the case of Sinatra v. Bussel, which was decided July 10, 2013.
The Bussels owned a condominium unit in The Sterling. They also owned a limited common element dock that was designated as appurtenant to their unit for their exclusive use.
After The Sterling was completed, a second phase of development was started named Sunset Watch. The Bussels purchased a second condominium unit in Sunset Watch. The declaration of condominium for The Sterling was amended to allow leasing of docks and boat slips in The Sterling to owners of units in Sunset Watch.
The Bussels sold their Sunset Watch unit to the Sinatras and included a deed to the boat slip at The Sterling. The Bussels later sold their Sterling unit to Mr. Balog. When the Sinatras tried to use the boat slip, Mr. Balog objected and the parties went to court. Both trial judge and appellate court agreed that the Bussels had no authority to transfer their limited common element boat slip to the Sinatras. The court explained that under Section 718.106 of Florida Statutes limited common elements go with a unit as appurtenances thereto. The court explained that the statute set conditions for transfer of use rights with respect to limited common elements to the extent authorized by the declaration of condominium. The declaration merely allowed leasing of boat slips in The Sterling to units in Sunset Watch. Consequently, Mr. Balog acquired the boat slip as a limited common element appurtenant to the unit he bought from the Bussels.
The Sinatra case emphasizes the importance of good legal advice in any real estate transaction. Before proceeding further, you should discuss your situation with an experienced real estate attorney.
William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.
Questions for this column can be sent to: William G. Morris, e-mail: email@example.com or by fax, (239) 642-0722. Other articles of interest can be viewed at our website, www.wgmorrislaw.com.