In short: It can, at least when the separation happened long ago and the buyer knew about it. A garage listed in a condo document is not automatically yours if the association split it from the unit years before you bought and the claim is time-barred or waived. In Utley v. Beach Winds Condominium Association, buyers of Unit 110 sued to get Garage D10 back. The Fifth District affirmed the judgment for the association on March 10, 2020, without a written opinion.
The Facts
Stephen and Brittany Utley bought Unit 110 at Beach Winds, a Brevard County condominium. The facts here come from the oral argument, not from an opinion. According to the argument, the developer conveyed Unit 110 to the association by a deed that described Garage D10 as a limited common element appurtenant to the unit. The association used the garage for storage and, in 2001, sold Unit 110 without it. In 2004 the owners adopted an amendment to the declaration saying a failure to enforce the governing documents for any length of time would not stop any party from enforcing them later.
The Utleys bought Unit 110 in 2016, knowing the garage did not come with it. The association said they negotiated a lower price because of that. After closing, they demanded the garage and then sued. After a bench trial, the court entered judgment for the association. As read aloud at argument, the final judgment found no breach of the declaration and said that, had there been one, the association’s defenses of statute of limitations, laches, estoppel and waiver would have applied. The points below are what the lawyers argued, not findings by the appellate court.
- The Utleys argued that once the developer deeded the unit with the garage as its limited common element, the two could not be separated unless the declaration allowed it, and this declaration did not.
- They argued the trial court was wrong to say the association could not be a “unit owner”; the statute defines a unit owner as a record owner of legal title, which the association was when it held Unit 110.
- They argued the 2004 anti-waiver amendment defeated the waiver and limitations defenses, and that the violation was a continuing one they could enforce at any time.
- The association argued the garage never became a limited common element because the developer never conveyed it to an individual owner, that the 2001 separation started the limitations clock long before the Utleys bought, and that the Utleys waived any claim by buying with full knowledge.
- The panel asked why the alternative limitations and waiver rulings were not a separate reason to affirm, and noted the Utleys had not challenged them in their initial brief.
The Decision
The Fifth District affirmed on March 10, 2020, in a per curiam affirmance without a written opinion. The Utleys moved for rehearing and a written opinion, and the court denied that motion on April 13, 2020. The mandate issued May 4, 2020.
Because there is no opinion, we do not know which ground the court relied on. The trial court’s judgment had more than one basis, and an appellant who does not attack every independent basis for a judgment usually cannot win reversal. A per curiam affirmance decides only this case and does not establish a rule about limited common elements.
The Law
Under section 718.103, limited common elements are common elements reserved for the use of a certain unit or units to the exclusion of all others, as specified in the declaration. Association property is property owned by the association for the use and benefit of its members. A “unit owner” is a record owner of legal title to a condominium parcel.
Under section 718.106, the exclusive right to use limited common elements passes with the unit as an appurtenance, and that right can be transferred to other units or owners only to the extent authorized by the declaration as originally recorded. That is the rule the Utleys relied on.
Time limits still apply. Under section 95.11, an action on a written contract, which includes a condominium declaration, generally must be brought within five years. The association’s position was that the clock started when the garage was separated in 2001, not when a later buyer took title.
Lessons
- Before you buy a condo, compare the deed, the declaration and the association’s records for every parking space, garage or storage unit you expect to get. If they don’t match, resolve it before closing.
- Buying with knowledge of a problem, and negotiating a price for it, can be used against you later as waiver.
- An anti-waiver clause in the declaration may not be enough to revive a claim the statute of limitations has already cut off.
- On appeal, challenge every independent ground for the judgment in the initial brief. An unchallenged alternative ground can end the appeal.
- Associations should document how and why any limited common element was reassigned, and whether the declaration authorized it.
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
🎯 Condo Bought, Garage Stripped Away — Did the Developer Deed Kill Their Rights?
Go Deeper
- Developer Parking and Storage Assignments Upheld: The Condo Association Loses (Aria on the Bay)
- He Paid $5,000 for a Condo Parking License, Then Lost It (Keane v. President Condo)
- Five-Year Deadline to Challenge HOA Covenant Amendments in Florida (Hilton v. Pearson)
Frequently Asked Questions
Can a condo association take away my assigned parking space or garage?
Generally, a limited common element assigned to your unit passes with it, and under section 718.106 it can be transferred only as the declaration as originally recorded allows. But if the space was separated before you bought, and you bought knowing that, a claim to get it back can fail on waiver or the statute of limitations, as it did for the buyers in Utley.
What is a limited common element in a Florida condo?
It is part of the common elements reserved for one or more units to the exclusion of others, as the declaration specifies, under section 718.103. Typical examples are assigned parking spaces, garages, balconies and storage lockers.
How long do I have to sue my condo association for violating the declaration?
A claim on a written contract, which includes the declaration, generally must be filed within five years under section 95.11. When the clock starts depends on the claim. In Utley, the association argued it started when the garage was separated in 2001, long before the buyers purchased.
Does an anti-waiver clause in condo documents stop the statute of limitations?
Not necessarily. The Utleys argued their declaration’s anti-waiver amendment let any owner enforce it at any time, and the panel questioned whether that language extended the limitations period. The Fifth District affirmed without an opinion, so the case does not resolve the question.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
