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University of Miami Business Law Review

Document Type

Note

Abstract

No other form of property ownership is as synonymous with Florida as the condominium. While ownership of airspace was possible under common law, modern condominiums are more accurately described as creatures of statute. Although the Florida Condominium Act (FCA) expressly provides for fee simple airspace ownership of condominium property, it had been unclear if the Act could provide for fee simple airspace ownership of non–condominium property. Sterling Breeze v. New Sterling Resorts cleared up that ambiguity and found that the FCA can provide for fee simple ownership of non–condominium airspace. First, this note will review the development of airspace ownership rights as they relate to condominiums within both common law and statutory regimes. Next, this note will explain key provisions of the FCA as well as Florida case law relevant to airspace ownership. This note will then discuss Sterling Breeze v. New Sterling Resorts which tested whether, under the Florida Condominium Act, non–condominium airspace can be owned in fee simple if the non–condominium airspace was described in a condominium declaration. Adopting a contract–based approach that looks to condominium declarations governed by the FCA, the Sterling Breeze court affirmed that non–condominium airspace can be owned in fee simple if that airspace was described in the declaration creating the condominium. This note will then consider potential benefits of the contract–based approach to airspace ownership adopted in Sterling Breeze and briefly discuss the urban planning and land–use benefits that flow from including non–condominium airspace within the FCA’s scope. This note concludes with a consideration of how Florida common law may also provide for fee simple airspace ownership outside of the Florida Condominium Act.

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