In a recent decision involving condominium issues, the Third District Court of Appeal was called upon to determine relative responsibilities between the association and unit owners for boat slips that were considered limited common elements under the governing documents. In Roberts v. Nine Island Avenue Condominium Association, Inc., Case No. 3D09-371, September 21, 2011, the Court decided that the association there did not have the obligation to insure these limited common elements under the governing documents or relevant Florida Statutes. The decision creates the potential problem for associations and unit owners which contain limited common elements or other property.
At the Nine Island Avenue Condominium, a marina and boat slips were added to the existing Condominium and designated as limited common elements of those units who purchased them. In 1999, the marina was destroyed by Hurricane Irene and was not insured at the time. The Court reviewed the insurance provisions of the Declaration of Condominium (the “Declaration”) and did not find a specific reference to the limited common elements under the section entitled “required coverage”. The Court concluded that in the language in the Declaration referencing required insurance, the phrase “Building and other improvements of the Condominium, including Units and Common Elements” did not extend to the limited common elements. According to this Court, the Declaration must expressly include the “limited common elements” in the required coverage section for such obligation to exist. Consequently, according to this decision, “limited common elements” are separate and distinct from “common elements”.
Although it did not formally include such conclusion in its opinion (as it was not necessary to the case), the Court further expressed its doubt that it would have decided that the requirements of Section 718.111(11) of Florida Statutes from 1999 (when the loss occurred) would have mandated the Association to have obtained insurance coverage on the boat slips under the circumstances.
Based upon this new decision by the Appellate Court, condominium associations, and particularly those with limited common elements, should review their governing documents with legal counsel to make certain that there is sufficient language contained in the documents to address all relevant insurance coverage related concerns.