New Decision: Air Rights (Sterling Breeze Owners’ Ass’n v. New Sterling Resorts)
September 17, 2018

Swiss cheese like apertures underlay the recent decision in Sterling Breeze Owners’ Ass’n, Inc. v. New Sterling Resorts, LLC, Case No. 1D17-1553 (September 5, 2018).

Sterling Breeze’s developer declared and constructed a 22-story condominium, including 145 residential units. The Declaration expressly excluded four ground-floor “Associated Commercial Parcels” referred to as “ACPs” to which the developer retained fee simple ownership. Attached to the Declaration was an “Associated Commercial Parcels Easement and Reservation” between the Association and developer which specified that the ACP’s “would be used for commercial purposes in the building” and the ACP’s owner would maintain the interior and be responsible for ACP’s expenses including utilities.

Six years after the Declaration was recorded the Association sued to nullify the Reservation asserting that the ACPs were “airspace” not able to be privately owned separate from the condominium, seeking declaratory relief, quiet title and unjust enrichment for the expenses of utilities and maintenance. The trial court granted New Sterling, the ACP owner, summary judgment on the declaratory relief and quiet title claims, and after a bench trail awarded unjust enrichment damages of $332,752.93 to the Association.

The Appellate Court began its analysis with the Condominium Act’s definition of “land” as including “airspace” above the surface and

if so defined in the declaration, the term “land” may mean all or any portion of the airspace….”

§718.103(18) Fla. Stat. Thus, the Condominium Act contemplates that a declaration of condominium may exclude certain portions of airspace from the condominium.

The appellate court reversed the quasi-contract unjust enrichment award. The ACP Agreement attached to the Declaration created express obligations from the ACPs owner to the Association for the expenses sought. When a contract addresses the exact issue, a quasi-contract claim cannot proceed.

It is assumed, but interestingly the court does not expressly state, that the statute relied upon is the 2008 version which has the same language as the current version. Also interesting, the court cites for the proposition that “common law yields when it is inconsistent with state law” the Florida Supreme Court’s decision in Maronda Homes, Inc. of Fla. v. Lakeview Reserve HOA, Inc. 127 So. 2d 1258, 1268 (Fla. 2013), even though the Florida Legislature rejected the substantive holding regarding implied warranties for common area construction essential to habitability,. Fla. Laws Chapter 2012-161 Section 3, Maronda at 1271.

Those with interest in the right to buy thin air should read up on Marty Schwartz’s informative “It’s Up In The Air: Air Rights in Modern Development, 89 Fla. Bar. J. No. 4 at page 42 (April 2015), as well as §193.0237 Fla. Stat. (2018) allowing for separate parcel tax identification numbers, and thus taxation, for air parcels, which was drafted in large part by Burt Bruton and Marty.

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar

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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section

© 2018 Michael J. Gelfand

Michael J. Gelfand

Florida Bar Board Certified:

Real Estate Attorney

Condominium & Planned Development Law

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Attorneys

The only thing necessary for the triumph of evil is for good men to do nothing.

- Edmund Burke


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