Airspace and common elements
Interests and rights
Organization and management
A condominium is a hybrid form of ownership of multi-unit residential or commercial properties. It combines ownership of a fee simple interest in the airspace within a unit with ownership of an undivided share, as a tenant in common, of the entire property’s common elements, such as lobbies, swimming pools, and hallways.
A condominium unit is one airspace unit together with the associated interest in the common elements.
Airspace and common elements
The unique aspect of the condominium is its fee simple interest in the airspace contained within the outer walls, floors, and ceiling of the building unit. This airspace may include internal walls which are not essential to the structural support of the building.
Common elements are all portions of the property that are necessary for the
existence, operation, and maintenance of the condominium units. Common elements include:
- the land (if not leased)
- structural components of the building, such as exterior windows, roof, and foundation
- physical operating systems supporting all units, such as plumbing, power, communications installations, and central air conditioning
- recreational facilities
- building and ground areas used non-exclusively, such as stairways, elevators, hallways, and laundry rooms
A buyer who purchases Unit #1 of the condominium illustrated obtains a fee simple interest in the airspace of apartment 1 and a tenancy in common interest in her pro rata share of the common elements. If all units in the building have the same ownership interest, the buyer would own an indivisible one-ninth interest in the common elements– pool, parking lot, garage, pool, building structure, tree, etc.
Interests and rights
The condominium unit can be owned jointly, in severalty, in trust, or in any other manner allowed by state law. Unit owners hold an exclusive interest in their individual apartments, and co-own common elements with other unit owners as tenants in common.
Possession, use, and exclusion. Unit owners exclusively possess their apartment space, but must share common areas with other owners. The property’s legal documents may create exceptions. For example, unit owners may be required to join and pay fees for use of a health club.
Unit owners as a group may exclude non-owners from portions of the common area, for instance, excluding uninvited parties from entering the building itself.
Transfer and encumbrance. Condominium units can be individually sold, mortgaged, or otherwise encumbered without interference from other unit owners. As a distinct entity, the condominium unit may also be foreclosed and liquidated. An owner may not sell interests in the apartment separately from the interest in the common elements.
Resale of a unit interest may entail limitations, such as the condominium association’s prior approval of a buyer.
Condominium units are individually assessed and taxed. The assessment pertains to the value of the exclusive interest in the apartment as well as the unit’s pro rata share of common elements.
Condominium properties are created by executing and recording a condominium declaration and a master deed. The declaration must be legally correct in form and substance according to local laws. The party creating the declaration is referred to as the developer. The condominium may include ownership of the land or exclude it if the land is leased.
Declaration provisions. The condominium declaration may be required to include:
- a legal description and/or name of the property
- a survey of land, common elements, and all units
- plat maps of land and building, and floor plans with identifiers for all condominium units
- provisions for common area easements
- an identification of each unit’s share of ownership in the overall property
- organization plans for creation of the condominium association, including its bylaws
- voting rights, membership status, and liability for expenses of individual owners
- covenants and restrictions regarding use and transfer of units
Organization and management
Organization. Condominium declarations typically provide for the creation of an owner’s association to enforce the bylaws and manage the overall property. The association is often headed by a board of directors. The association board organizes how the property will be managed and by whom. It may appoint management agents, hire resident managers, and create supervisory committees. The board also oversees the property’s finances and policy administration.
Management. Condominium properties have extensive management requirements, including maintenance, sales and leasing, accounting, owner services, sanitation, security, trash removal, etc. The association engages professional management companies, resident managers, sales and rental agents, specialized maintenance personnel, and outside service contractors to fulfill these functions.
Individual units. Owner responsibilities relating to the apartment include:
- maintaining internal systems
- maintaining the property condition
- insuring contents of the unit
Common area assessments. Unit owners bear the costs of all other property expenses, such as maintenance, insurance, management fees, supplies, legal fees, and repairs. An annual operating budget totals these expenses and passes them through as assessments to unit owners, usually on a monthly basis.
Should an owner fail to pay periodic assessments, the condominium board can initiate court action to foreclose the property to pay the amounts owed.
The unit’s pro rata share of the property’s ownership as defined in the declaration determines the amount of a unit owner’s assessment. For example, if a unit represents a 2% share of the property value, that unit owner’s assessment will be 2% of the property’s common area expenses.
The Condominium Act. F.S. Chapter 718 (the Condominium Act) requires developers selling condominium units to provide the buyer with copies of the governing documents (Declaration, Articles of Incorporation, Bylaws, Rules of the Association, and Frequently Asked Questions sheet) and have the buyer sign a receipt for the documents. The developer must also include a disclosure with the sales contract that provides the buyer with 15 days after signing the contract and receiving the required materials to submit a written cancellation notice. The buyer may also cancel within 15 days of receiving a contract amendment that is adverse to the buyer. The disclosure must also include language that the budget provided to the buyer contains estimates which, if they do not match actual costs, do not constitute adverse changes to the offering.
The Act requires condominium unit owners who are reselling their units to provide the buyer with copies of the governing documents, current year-end financial report, Frequently Asked Questions sheet, and a governance form. The Division of Florida Condominiums, Timeshares, and Mobile Homes created the governance form as an informal educational overview of condominium governance. It includes such topics as the role and responsibilities of the board, owners’ rights, remedies available to owners, and more. Sellers will want to have the buyer sign a receipt confirming he or she has received all of the required documents. The Act also requires the seller to include a disclosure with the sales contract that provides the buyer with the right to cancel in writing within 3 business days of signing the contract.
If the condominiums are being sold prior to construction completion, the developer must disclose a copy of the plans and specifications for the completion of the units and common areas. All contracts and disclosures must contain language that oral representations cannot be relied upon and that the right to cancel may not be waived.