On Sunday most every week my mother used to make stew. “Stew” means she took whatever was left over from anything that would keep with whatever meat was available and pressure cook it for whatever time she had. The result was wonderful, but no one could ever make a recipe for that meal.
Townhome documents work the same way, and the purpose of this article is to drive home the view that the way each townhome unit relates to the other is a major part of the townhome experience. Townhomes are different from condominiums, or from single-family homes. Florida Condominiums are a creature of statute, and the statute dictates a great deal of whatever is contained in a condominium declaration. The condo association owns all common areas, including walls, roofs, parking areas, boat docks, if there are any, and anything supporting the building. Single family homes may, or not, have common areas such as roads, pools, boat docks, or other enhancements to ownership, depending on the developer. If there are no declarations in a single-family home subdivision, all is not a disaster. Local ordinances control setback lines, often parking in the street, and some kinds of conduct between adjacent owners. A single-family home subdivision may have no association.
Townhomes are entirely different. There are no statutes governing whether roof lines are owned by an association, by owners in common, or individually. The separating walls between townhomes are not defined by statute, and there is not even a legal requirement for a homeowner’s association. Common area, if any, is handled in a miasma of different ways. Most townhomes will be run by an association, but the specific responsibility of the Association is only found in its Declaration.
A townhome HOA can own all the common improvements, such as roads, retention areas, recreation areas, or common walls. On the other hand, individual unit owners can be granted undivided ownership in all these assets. Practically it may make no difference since everyone gets to use them, and usually the HOA controls the maintenance of those assets. But legally there is a vast difference in the legal effect of various townhome Declarations. For instance, if a hurricane takes out a children’s play area, if all the residents who might once have had young children no longer have young children, a majority may not be motivated to rebuild a children’s playground. They may want a pickleball court, a rose garden, or nothing at all. On the other hand, an owner with young children may have bought the unit next door to the playground so their kids could use it. They may want to rebuild the playground and the noise of a pickleball court doesn’t interest that owner at all. There is a totally different legal analysis if the playground is owned by the association, where some fraction of unit owners will decide by vote, or if each owner is a fractional owner who may have individual property rights that prevail over the association’s rights.
Most critically, if one townhome owner does not carry insurance on his unit and the others do, destruction of a building could be a disaster for all units because if one unit owner cannot afford to rebuild, the other units have a vacant space between them, perhaps they cannot rebuild at all.
The reason for this article is to say townhomes are a viable compromise between single-family homes and condominiums, but they also create an enormous responsibility for the developer. The message of this article is that just like my momma’s Sunday afternoon stew, there is no recipe for what goes into a townhome declaration.
The way the builder builds the structure is only half the value of a townhome. The other half, the way it is documented, is just as important.
- The buyers of any new building will have vastly different things to look for than one buying an older structure.
- Remember that as buildings grow older, they will naturally have things go wrong with the structure, plumbing, wiring, etc. Condominiums have detailed statutory reserve requirements to encourage long-term value. No statute requires reserve accounts for townhomes. But just as important, as the owner grows older their demands on the property also change. For instance, their demands for parking space change when their children become teenagers. These changes are often easier to accommodate in a single-family property or condominium.