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Affirmed: No Authority to Transfer Interest in a Limited Common Element

Posted on: July 23, 2013

Sinatra v. Bussel, 2D12-1031 (Fla. 2d DCA 2013):

The Sinatras and Mr. Balog purchased separate condominium units from the Bussels. Both believed that they had purchased a dock and boat slip as part of their individual transactions. The Second District affirmed the trial court’s determination that as a matter of law the Bussels did not have authority to convey their interest in the dock and boat slip to the Sinatras and that title vested in Mr. Balog.

As owners of a unit in The Sterling, the Bussels owned interest in a dock and boat slip that are described in The Sterling’s recorded Declaration of Condominium (“Declaration”) as a limited common element. The Declaration also provided that ownership of individual docks and boat slips could be transferred without having to transfer ownership of the condominium unit, but only to an owner of another unit in The Sterling.

The Bussels later purchased a unit in the newly constructed Sunset Watch condominium, part of The Sterling development. The Declaration was amended to allow for leasing of docks and boat slips assigned to units in The Sterling to owners of units in Sunset Watch. The Bussels sold their Sunset Watch unit to the Sinatras and gave the Sinatras a quit claim deed purportedly transferring their ownership interest in the dock and boat slip assigned to their unit in The Sterling. Subsequently, the Bussels sold their unit in The Sterling to Mr. Balog. The deed in that transaction included a description of the limited common element of the dock and boat slip.

The Second District’s analysis started with the general principle that an interest in a limited common element is not subject to separation from interest in the unit to which it is assigned and cannot be transferred apart from transferring ownership of the unit to which the limited common element is assigned. However, § 718.106 provides for the possibility of the transfer of the rights in a limited common element without the necessity of transferring the ownership interest in the unit itself.

While the amendment to the Declaration provides authority for a unit owner of The Sterling to lease to a Sunset Watch unit owner, it does not provide authority for the transfer of the ownership interest in the limited common element. Accordingly, the Bussels had no authority to transfer their ownership interest in the dock and boat slip to the Sinatras. An experienced real estate attorney may have been able to determine for the Sinatra’s that the limited common element could not be transferred.

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