If you are buying a commercial unit in a Florida mixed-use condominium created between April 1, 1992 and January 1, 1996, check how the recorded declaration allocates common expenses. A smaller unit can carry a much larger share than its square footage suggests. The bill may reflect an accounting mistake, but it may also follow the percentage written into the declaration.
The surprise at assessment time
You buy a modest commercial condo because the price and association fees fit your budget. You review the financials, close the transaction, and open for business.
Years later, the building faces major repairs, insurance costs increase, or a special assessment is approved. You compare your bill with a larger commercial unit next door. Your commercial unit has less square footage, yet its share of the assessment is higher.
Your first thought is understandable: There must be an error.
The association may be applying the ownership percentage stated in the recorded declaration. For certain older mixed-use condominiums, that percentage was not required to track the commercial unit’s square footage. A smaller commercial unit can therefore carry a larger share of common expenses.
The statutory gap
Florida’s condominium statute requires a declaration to state each unit’s undivided share of the common elements and common surplus. For residential condominiums created after April 1, 1992, section 718.104(4)(f) requires the ownership share assigned to each residential unit to be based either on each residential unit’s total square footage in a uniform relationship to the other residential units or on an equal fractional basis. (See the last section for how to calculate ownership interests.)
Section 718.404(3) applies a comparable rule to mixed-use condominiums created after January 1, 1996: the ownership share assigned to each residential or commercial unit must be based on uniform square-footage relationships or equal fractions.
That leaves a narrow but important period for mixed-use condominiums created after April 1, 1992 and before January 1, 1996. Section 718.104 had already imposed a formula for residential units, but section 718.404(3) had not yet imposed that formula on mixed-use units as a group. In that window, a commercial unit’s percentage may be set by the recorded declaration rather than by the unit’s size, provided the condominium documents and the statute otherwise support the allocation and the ownership interests for all units add up to exactly 100%.
The date must be investigated carefully. A condominium is created by recording its declaration in the county’s public records under section 718.104(2). A later amendment, phase, or change in the condominium structure can make the analysis more complicated. The recorded documents, not a listing, tax record, or an owner’s estimate of commercial-unit square footage, are the starting point.
Sailboat Cay: the association asked DBPR to lower its own unit’s share
In a 1999 declaratory statement, the Sailboat Cay Condominium Association petitioned DBPR about the allocation assigned to one of its own commercial units. The Association wanted to know whether it could reduce or redistribute the assessment burden attached to its management unit.
Sailboat Cay was a mixed-use condominium created in 1994, squarely inside the date window discussed above. Its commercial unit CU-219 had an approximately 4.4% share of the common elements, even though the commercial-unit percentages were not calculated by square footage. The developer had transferred CU-219 to the Association, which used it for management and meetings. Because the Association owned the unit, no individual commercial owner was paying that unit’s unusually large share.
The Association asked whether it could redistribute the 4.4% share, either among the commercial units or throughout the condominium. DBPR’s answer is the part prospective buyers should remember: the Association had to use the percentage interests stated in the recorded declaration when calculating common expenses. The fact that the commercial allocation looked disproportionate did not authorize the board to substitute a square-footage formula after the fact.
DBPR also rejected the idea that the allocation could be treated as a simple scrivener’s error. The total interests added up to 100%, and the record indicated that the commercial percentages had been intentionally assigned. Under the declaration and the framework considered in that proceeding, changing the percentage required the required owner and lienholder consents, including the stated approval of all unit owners. The board could not accomplish the redistribution by administrative action alone.
DBPR explained that the ordinary administrative error procedure does not correct an inequitable but intentional allocation. It identified reformation in equity, a court remedy, as the available path. Read the DBPR Sailboat Cay declaratory statement before treating a commercial unit’s disproportionate percentage as an obvious drafting error.
Why the percentage matters
The percentage in the declaration usually determines the commercial unit’s share of common expenses.
Section 718.115(2) says that common expenses are collected from units in the proportions or percentages provided in the declaration. Applied to the issue here, that means a commercial unit’s share is generally determined by the percentage assigned to that commercial unit. The statute also says that, in a residential condominium or a mixed-use condominium created after January 1, 1996, the unit’s share of common expenses and common surplus is the same as its appurtenant ownership interest in the common elements.
So if a declaration assigns one commercial unit a 12% interest and another commercial unit a 6% interest, a $100,000 common expense would generally be allocated at $12,000 and $6,000 respectively, subject to the declaration, the nature of the expense, and any applicable statutory rule. Those are individual examples, not a complete condominium allocation. The remaining units must carry the remaining 82% so that all ownership interests together equal exactly 100%. The 12% commercial unit does not become 6% merely because it has fewer square feet than its commercial neighbor.
Declarations can allocate particular expenses differently, and the statute contains specific rules for some categories. An owner should identify the rule governing the charge before disputing the bill.
Why fixing it may be difficult
After units have been sold, changing a percentage can alter every owner’s financial responsibility and share of the common surplus.
Section 718.110(4)(a) generally provides that an amendment changing the proportion or percentage by which a unit owner shares common expenses and owns the common surplus requires the affected unit owner and lienholders to join in the amendment, and requires approval by the record owners of all other units in the same condominium, unless the declaration originally provides otherwise. Section 718.110(4)(a) also addresses minimum voting requirements for declarations recorded after April 1, 1992.
Reducing one commercial unit’s percentage usually shifts the difference to other residential or commercial units. Those owners may see their own percentages and future assessments increase, which turns the proposed correction into a negotiation.
Section 718.110(5) treats a genuine scrivener’s error differently from a deliberate allocation that an owner later considers unfair. It provides a streamlined correction process when the total shares do not equal 100% or more than 100% has been distributed. The provision does not authorize a rewrite of a valid allocation that materially changes owners’ property rights.
What to check before buying
A buyer of a commercial condominium should treat the ownership percentage as a core financial term of the purchase, not as boilerplate.
- Find the original declaration. Confirm the recording date, identify the condominium as residential or mixed-use, and locate the percentage or fraction assigned to the commercial unit.
- Read every relevant amendment. Look for changes to unit boundaries, percentages, common expenses, phases, or the identity of the association.
- Compare the percentages with the budget. Ask how the association allocates regular assessments, reserves, insurance, maintenance, and proposed special assessments. A quoted monthly fee may not reflect what you will owe after a major project.
- Check the neighboring commercial units. Comparing their square footage and ownership percentages can reveal an allocation that deserves legal review before closing.
- Obtain the association’s records and disclosures. Review budgets, financial statements, pending assessments, meeting minutes, and any discussion of repairs or insurance. For a Miami-Dade property, start with the County’s Community Associations Registry, which provides governing documents and other association information for registered associations.
- Have a real-estate attorney compare the recorded allocation with the condominium’s creation date, unit type, amendments, and proposed expense allocation. A pre-closing review costs far less than a dispute after closing.
Square footage is only the first check
Square footage and financial responsibility can diverge in a mixed-use condominium created before section 718.404(3) applied. Sailboat Cay shows how a surprising commercial-unit percentage can remain binding when the recorded declaration supports it.
If you own such a commercial unit and its percentage seems high, do not simply stop paying an assessment. First compare the bill with the declaration, amendments, budget, and the statute in effect for that condominium. A dispute may involve an accounting mistake, an expense that should be allocated differently, a valid but unfavorable declaration, or a correctable recording error. Those are different problems with different remedies.
If you are considering buying a commercial unit, ask the question before signing: What percentage of the condominium’s common expenses will this commercial unit carry, and where does that percentage appear in the recorded documents? The answer may matter more than the commercial unit’s square footage.
Extra: How ownership interests are calculated after January 1, 1996
The statute describes two basic methods for assigning ownership shares in the condominiums to which these formulas apply: a uniform relationship based on square footage, or an equal fractional basis. Section 718.404(3) applies those alternatives to mixed-use condominiums created after January 1, 1996. The formula applies across the mixed-use condominium, so residential and commercial units are included in the same calculation. Section 718.115(2) then ties common-expense assessments to the proportions or percentages in the declaration, and for those newer mixed-use condominiums, to the unit’s ownership interest.
Under the square-footage method, consider one residential unit, three commercial units, and a $60,000 common expense. The total area is 6,000 square feet. The 1,000-square-foot residential unit and the 1,000-square-foot commercial unit each represent one-sixth of the total. Each 2,000-square-foot commercial unit represents one-third.
Under the equal-fraction method, the same mixed-use condominium could give each of its four units one-fourth of the ownership interest. The different unit sizes do not change the equal shares, so each unit would owe one-fourth of the $60,000 common expense.
These examples explain the ordinary formulas. They do not replace the recorded declaration, and they do not mean that every older commercial condominium can be recalculated using one of them. That is precisely why the condominium’s creation date and the commercial-unit allocation in the recorded declaration matter.
This article is general information about Florida law, not legal advice, and does not create an attorney-client relationship. Condominium rights and assessments depend on the recorded declaration, amendments, bylaws, budget, expense, and facts specific to the property. Statutes can change; confirm the law and documents with a Florida condominium attorney before relying on this article.
Authorities cited: Fla. Stat. § 718.104(2), (4)(f)-(g); Fla. Stat. § 718.404(3); Fla. Stat. § 718.110(4)-(5); Fla. Stat. § 718.115(2)-(3); and In re Sailboat Cay Condominium Association, Inc., DBPR Case No. DS 98-040, File No. DS98162, Final Order No. BPR-99-00063 (Jan. 6, 1999).