download (2)Ownership of a condominium unit, includes “appurtenances”, meaning rights which are attached to the unit and pass with the unit upon its sale. A plain English definition of the term means “connected to”. Typical examples of an appurtenance include common elements to which one or more unit owners have an exclusive use right such as the limited common element balcony attached to the unit and a limited common element parking space. More specifically, section 718.106 of Chapter 718 of the Florida Statutes, more commonly referred to as the “Condominium Act”, provides that appurtenances include:

1) an undivided share in the common elements and common surplus;
2) the exclusive right to use limited common elements as designated by the declaration;
3) an exclusive easement for the use of the airspace occupied by the unit;
4) membership in the condominium association with full voting rights; and
5) other appurtenances as may be provided in the declaration of condominium.

With limited exception, and unless otherwise set out in the declaration of condominium as originally recorded, appurtenances to a unit cannot be materially altered or modified without the approval of ALL of the unit owners, meaning one hundred percent (100%) approval, is required. This requirement is set out in section 718.110(4), Florida Statutes. Commonly, the use of this level of unit owner approval is evoked when a unit owner colonizes, or takes over, a portion of the common elements for that unit owner’s exclusive use. For example, where a unit owner installs a private patio in the common elements adjacent to his/her unit or where a unit owner finishes a common element attic space for use as a spare room.

However, the use of section 718.110(4), Florida Statutes, as a sword against an amendment to the declaration of condominium removing membership in an off-site fitness club designated as an “appurtenance to the Unit” in the declaration of condominium was recently denied on October 18, 2017 by Florida’s First District Court of Appeal in the case of Silver Beach Towers Property Owners Association, Inc., Silver Beach Towers East Condominium Association, Inc., and Silver Beach Towers West Condominium Association, Inc. v. Silver Beach Investments of Destin, L.C., and The Club at Silver Shells, Inc. It is the fifth factor, as set out in section 718.106, above, “other appurtenances as may be provided in the declaration of condominium” that is the subject of the appellate court’s review.

In this case, the declaration of condominium provided that each unit owner automatically became a non-equity member of The Club at Silver Shells, Inc. (the “Club”) which membership was deemed appurtenant to the unit. Unit owners were prohibited from terminating their membership until the unit was conveyed to another owner, but the Club was authorized to terminate an owner’s membership without notice to the owners. The Club’s property and facilities were located approximately a mile away from the condominiums and remained the property of “Silver Shells Corporation.” Although the Club property was “intended primarily for the benefit of the Owners and Occupants of Units,” the Club property could also be made available to the general public. However, the unit owners remained responsible to pay dues and fees set and charged by the Club at its sole discretion.

To rid themselves of the need to pay dues and fees to the Club, the declaration of condominium was amended to remove the provisions related to the Club membership and related expenses pursuant to the typical amendment provisions as set out in the declaration requiring the affirmative approval of a super majority of the owners. This amendment was later challenged by the Club and the community’s developer as being invalid for failure of the amendment to have been approved by ALL of the unit owners in accordance with section 718.110(4), Florida Statutes. In other words, in plain English, the Club and developer argued that, because membership in the off-site fitness club was declared as an appurtenance to ownership of a condominium unit, they argued amending this provision out of the declaration of condominium required 100% affirmative consent of ALL of the owners.

The trial court agreed with the Club’s and developer’s argument. But, on appeal the Appellate Court disagreed with the trial court and found that, notwithstanding the declaration of condominium provision which deemed that the membership in the Club was appurtenant to the unit, such membership was, in fact, not an “appurtenance to the unit” as the phrase is characterized in the law. In other words, the appellate court held that merely describing something as an appurtenance in a declaration of condominium does not really mean it is an actual appurtenance if the appurtenance does not comply with then provisions of s. 718.106, Florida Statutes, discussed above.

The Appellate Court reached this conclusion because the Club memberships in the off-site commercial fitness club:

1) were “non-equity” memberships,
2) were not exclusively available to unit owners,
3) were terminable solely by the Club without cause or recourse of the member,
4) the club did not constitute a part of the “common elements” or “condominium property” as defined by sections 718.108 and 718.103(13), Florida Statutes, and
5) the Court found that the Club was not owned, controlled, or even affected by any input from the unit owners or the associations.

So, in other words, the Court said, without saying it, there was not a sufficient nexus between the requirement of club membership and condominium unit ownership because the Club memberships were not “appurtenances to the units,” as the phrase is legally defined, the approval of all of the unit owners to an amendment modifying such “appurtenances” in accordance with in section 718.110(4), Florida Statutes, did not apply. Therefore, the unit owner vote to amend the declaration of condominium by its normal amendatory provision to rid themselves of the requirement of the Club membership and dues was proper.

In the end, merely declaring something an “appurtenance” in a declaration of condominium does not necessarily make it so. If your board of directors has questions about your condominium’s appurtenances that are appurtenant to unit ownership then you will need to consult with your association’s attorney.

Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. He is a regular columnist for The Condo News, a biweekly publication and was inducted into the 2012, 2013 & 2014 Florida Super Lawyers. He can be reached at 561-241-4462.