All owners usually must OK converting common elements to private

Question: Is the majority in a condo HOA entitled to “privatize” common areas? I live in a two-story building in Century Village, with eight apartments on the first floor and eight condos on the second floor.

The owners living on the first floor are looking for signatures in order to get a majority vote to allow them to build and enjoy the “privacy” of their own patio, and prevent other owners from crossing their patios. Can they do this? — H.C.

Answer: In a condominium, each owner owns their own unit, and then a specific share of the common elements, which is owned jointly and severally with the other owners. That share of common elements (and the right to use the common elements) is an appurtenance (attached) to the unit and cannot be separated from that unit. In addition, certain common elements, called limited common elements, are dedicated to the exclusive use of one or more owners. Typically, balconies and patios are limited common elements; although, the way you describe the patios in your question, they are likely general common elements, as all owners appear to have the right to cross over them. Limited common elements are also appurtenant to the unit that enjoys their exclusive use.

Whether they are limited common elements or not, the patios are still common elements, and they are still owned jointly and severally by every owner in the property. The Condominium Act, at Section 718.110, Fla. Stat., states that, unless otherwise provided in the declaration of condominium as it was originally recorded, no amendment to the declaration may change the configuration or size of any unit or materially alter or modify the appurtenances to a unit unless that owner, and the owners of all of the other units, approve the amendment. If the association were to essentially privatize these common elements by redefining them as being included within the units, that would constitute an amendment that changes the relative shares of ownership of the common property, and the amendment would require the consent of all owners. The only exception would be if your declaration of condominium, as originally recorded, specifically allows this kind of conversion upon the approval of a lesser percentage of the membership.

Q: Our board of directors wants to pass a hurricane assessment, however, there was not much damage to the property. The items listed on the proposed assessment included landscaping (cleanup), waterproofing, electrical work, pool chemicals and pool pump replacement and a new awning. But, the majority of items listed on the assessment were due to the failure of repairs and maintenance from the past. For example, the pool pump was flooded once and was not replaced, and finally the pump stopped working due to another flood in the pool area. Should a professional be hired to determine whether these items are legitimate hurricane damages in order for the board to ask unit owners for a hurricane assessment? — T.B.

A: In an ordinary situation, your board either has the ability to pass a special assessment without the approval of the unit owners, or it does not. If a special assessment does not require unit owner approval, the board can pass an assessment for any non-budgeted common expenses. Assuming that you live in a condominium, in its notice of the budget meeting where the assessments will be considered, the board must state the nature and estimated cost of the assessments, and it must describe the purposes of these assessments.

Reading in between the lines of your question, my guess is that your governing documents would ordinarily require the board to get the approval of the membership for a special assessment, but the board is hoping to take advantage of the emergency powers listed in Section 718.1265, Fla. Stat., which powers includes the power to levy special assessments without a vote of the owners.

So, if my suspicion is correct, the board may be attempting to pigeonhole all items for which it wishes to collect funds (but would ordinarily require a membership vote) into an assessment that it describes as being required due to storm damage. Unfortunately there are no real guidelines as to what constitutes damage “caused by” a storm.

Some associations attempt to use these emergency powers liberally — I saw an association recently justify holding a board meeting with less than 48 hours notice due to the “state of emergency” declared by the governor, even though the meeting had absolutely nothing to do with the hurricane, and despite that, all of the directors were generally available at any time. Your only option would be to challenge the assessment in court, though it’s likely that the fight would be far too expensive to be worth the effort.

Ryan Poliakoff is a co-author of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living” and a partner at Backer Aboud Poliakoff & Foelster, LLP. Email questions to Please include your hometown.

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