“Condominium ‘Units’ May Include Raw Land” – News-Press
Q: I own several parcels of unimproved land within a condominium development. Recently, the condominium association sent me a bill for unpaid assessments, saying that these lots are considered “units” and therefore subject to assessments. I am unsure whether I am actually required to pay these assessments for my unimproved land, since it has not been developed yet. Does the fact that my land is unimproved affect whether it can be assessed, or am I still responsible for these payments? (B.S., via e-mail)
A: It sounds like you may own what lawyers in the field refer to as “phantom units.”
Whether your unimproved land within a condominium development can be assessed for common expenses generally depends on how the declaration of condominium defines a “unit.” Under the Florida Condominium Act, a condominium is generally defined as a form of ownership of real property that includes units subject to exclusive ownership and an undivided share in common elements appurtenant to each unit. Section 718.103(31) of the Act defines a “unit” as part of the condominium property that is subject to exclusive ownership, which may consist of improvements, land, or land and improvements together, as specified in the declaration of condominium.
If the declaration specifically identifies each unit, then all such units are typically subject to assessments for their share of the common expenses. There have been situations where courts have found that the only type of private ownership available within a condominium is a unit, and as a result, even unimproved property may be subject to assessments, if the declaration so provides.
For example, in a 1986 appellate court decision arising from a dispute involving a Lee County condominium, the Second District Court of Appeal interpreted the 1969 Act and held that unimproved land could be considered “units” under the statute, and the declaration of condominium made those “units” subject to assessment (Hyde Park Condo. Ass’n v. Estero Island Real Estate, Inc., 486 So.2d 1 (Fla. 2d DCA 1986)).
However, there have also been instances where the definition of “unit” could exclude unimproved land. In 1987, Florida’s Fourth District Court of Appeal addressed a case under a later version of the Act, which the court found allowed for more flexibility in defining “units” in a declaration of condominium (Welleby Condo. Ass’n One, Inc. v. William Lyon Co., 522 So.2d 35 (Fla. 4th DCA 1987)).
After these case decisions were issued, the definition of “unit” was again amended in the Act, essentially adopting the rationale of the Lee County case. So, the answer is “maybe” your units are being properly assessed, and the legal answer may depend on what date your declaration of condominium was recorded, how it defines what “units” are, and perhaps what appellate court district the property is located in.
You should retain the services of an attorney who is qualified to provide you with proper guidance in this matter. I would suggest you visit the Florida Bar’s website and obtain a list of attorneys who are Board Certified in Condominium and Planned Development Law.
Q: I was recently told that board members are not permitted to prepare bylaw amendments. One of our board members has been working on proposed changes for a couple of years, and it is a disaster. What are your thoughts on this? (S.S., via e-mail)
A: In 2015, the Florida Supreme issued an “Advisory Opinion–Activities of Community Association Managers.” Drafting amendments to governing documents (and certificates of amendment) was found to be the practice of law.
The opinion did not address the activities of board members. Regardless, it is a bad idea, as these are legal documents with potentially significant consequences and can impact property values. While board members should be engaged with the policy choices involved with document amendments, they should not attempt to undertake the actual final drafting, unless reviewed and approved by counsel.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.
