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Condo Q&A: Does Florida Law Override a Declaration’s Language?

Fla. law says a condo association must maintain limited common elements; a declaration says it does not. Which one wins? Also: A condo board passed a rule that bans pit bulls, but a resident has had one for five years. Would the dog have to go if the board started enforcing the rule?

STUART, Fla. – Question: I was under the impression that under the Florida Condo Statute maintenance and repair of common elements including limited common elements were always the responsibility of the association, but my condo’s declaration says that the owner is responsible for the repair, maintenance and replacement of its limited common elements.

My question is if the association can do that in its declaration, or is there something in the Florida Condo Statute that trumps the declaration? – T.A., Coral Gables

Answer: First, limited common elements in a Florida condominium are defined as common elements that are reserved for the use of a certain unit or units to the exclusion of all other units, as specified in the declaration. Section 718.113(1), Florida Statutes provides that maintenance of the common elements is the responsibility of the association. However, that section goes on to state, “The declaration may provide that certain limited common elements shall be maintained by those entitled to use the limited common elements or that the association shall provide the maintenance, either as a common expense or with the cost shared only by those entitled to use the limited common element.”

In other words, limited common elements are maintained, repaired and replaced by the association as a common expense, unless the declaration makes the limited common elements the responsibility of the owner or owners who are entitled to use the limited common element.

Another option permitted by the statute is that the declaration can make the association responsible for the maintenance, repairs and replacement of the limited common element, but the cost can be allocated to only the owners who are entitled to use the limited common element. Please note that the language in your declaration will control this issue, so we recommend that you consult with a Florida licensed attorney to help interpret the language in your declaration.

Question: My condo association recently passed a rule in the governing documents that bans certain breeds of dogs (ex: pit bulls). I have a pit bull which I registered with the association when I moved in five years ago, and my dog was approved back then. There are other dogs in the building which are on the new restricted list as well, and the association never enforced the rules against any breed of dog.

Suddenly the association decided that they want to now enforce the rules. They have not asked me to remove my dog yet, but would they be able to if they wanted to? – A.L., Stuart

Answer: Since the rules prohibiting certain breeds have not been enforced, and your dog was in fact approved by the association when you moved in, your dog should be grandfathered in, and the association will not be able to force you to remove it. Even if the rule was in the governing documents at the time, if the association has chosen not to enforce it up to this point, they cannot suddenly force you to remove the dog.

However, this does not mean that just because your dog was approved, you can get another dog that is a prohibited breed or replace your dog with another pit bull when this one dies, because if the association wants to begin enforcing the rules moving forward, they are able to do so as long as they are not selectively enforcing the rule.

Avi S. Tryson, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

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