Christian Ross | Ross Title – Ross Law
The following article was written by Christopher Bryan, a current law student and future lawyer. He has been a fly on the wall at my office the last few weeks and took on the challenge to write an article. Enjoy!
Be Careful.
There’s a point in many real estate transactions where everyone assumes something is included—until someone later claims it wasn’t.
- A parking space.
- A storage unit.
- A boat slip.
- An easement.
- A dock.
And suddenly what seemed obvious becomes a dispute.
Imagine this. A buyer purchases a condominium unit where the prior deed specifically referenced Parking Space 12, but the Buyer’s new deed does not. Is this a problem? If so, who’s to blame and could this have been avoided?
The all-important distinction…. It depends.
In regards to Condominiums, there are typically two (2) ways to own these items (i.e. Boat slips, parking spaces, etc.). One way is for it to transfer on the deed, often referred to as “deeded rights”. The alternative solution is as an appurtenance.
To understand why issues like this arise so often, you first need to understand what appurtenant rights actually are and how condominium documents treat them.
What Are Appurtenant Rights?
An appurtenant right is a right that attaches to a piece of land and travels with it when the property is sold. It is not personal to the owner, it belongs to the land itself.
In the condominium context, appurtenant rights commonly include parking spaces, storage units, boat slips, garage spaces, cabanas, and exclusive terrace or garden areas. They can also include access or utility easements over common elements that serve a specific unit.
Whether a particular right qualifies as appurtenant — rather than a personal license or a separately transferable interest — depends on how the condominium declaration and its associated documents characterize it. That distinction matters enormously, and it is where most of the problems in practice begin.
Understanding how appurtenant rights are created is only part of the analysis. The next question is where those rights actually come from and how condominium declarations and deeds work together to transfer them.
Condominium Declarations and Their Relationship to Deeds
The condominium declaration and the unit deed are not the same document, and they do not serve the same purpose.
A. The Declaration as the Governing Instrument
The declaration is the foundational document. It creates the condominium, defines the units, describes the common elements, and establishes the rights and obligations of ownership. Recorded in the county public records, it governs the entire project, not just the individual unit.
One of its most important functions is defining limited common elements: portions of the common elements reserved for the exclusive use of one or more unit owners. Parking spaces, storage units, and boat slips are frequently designated this way.
B. How Unit Deeds Interact with the Declaration
The unit deed conveys the unit itself. But it operates within the framework the declaration establishes. A buyer takes title subject to everything the recorded declaration provides.
That means certain rights transfer even when the deed says nothing about them. If the declaration designates a parking space as a limited common element appurtenant to a specific unit, that right presumptively passes with the unit at closing.
The practical takeaway is straightforward: the deed and the declaration must be read together. A title review that stops at the deed is incomplete.
When Appurtenant Rights Transfer Automatically
An omission from a deed is not always fatal to the transfer of an appurtenant right. In many cases, the right transfers anyway.
A. The General Rule: Appurtenant Rights Pass with the Land
Under general property law principles, a right that is genuinely appurtenant to a parcel passes with the conveyance of that parcel with no express deed language required. Florida courts have applied this consistently: limited common elements appurtenant to a unit transfer with the unit under the declaration, even when the deed is silent.
B. The Exception: Personal Licenses and Separately Assignable Rights
Not every parking or storage right is appurtenant. Some are personal licenses — revocable permissions that belong to an individual, not to the land. A license does not survive a transfer of ownership. A buyer who assumes a licensed parking space is included in the purchase may find it never transferred to them at closing.
Some declarations also allow parking spaces, storage units, and boat slips to be transferred separately from units. If a right can be separately conveyed, it is not automatically attached to the unit. The difference between an appurtenant right and a licensable or separately assignable one is rarely visible from the deed alone — it requires a full review of the declaration, amendments, plat, and association records.
Risks Created by Silence in the Deed
Even where appurtenant rights transfer automatically as a matter of law, silence in the deed creates practical problems that are worth taking seriously.
A. Disputes Over What Was Conveyed
When a deed does not identify parking spaces, storage units, or other appurtenant rights, the parties’ post-closing understanding of what was transferred can diverge quickly. The buyer assumed the parking space was included. The seller assumed it was not — or had already transferred it to someone else.
Resolving that dispute requires exactly the kind of document review that should have happened before closing, otherwise it is expensive, time-consuming, and entirely avoidable.
B. Title Insurance Complications
Title insurance covers the interest described in the policy. If the policy describes only the unit — with no reference to parking or storage rights — a dispute over those rights may fall outside the policy’s coverage. A buyer who suffers a loss tied to an unidentified parking space may find their insurer has no obligation to respond. The fix is straightforward: identify and schedule appurtenant rights in the commitment and the policy.
C. Lender Requirements
Agency guidelines — including those of Fannie Mae and Freddie Mac — often require that parking facilities associated with a unit be identified and included in the loan collateral. A loan secured by a unit with no reference to an appurtenant parking space may fail to satisfy secondary market requirements. Catching this early is far easier than resolving it after closing.
D. Seller Liability
A seller who fails to ensure the deed accurately reflects what is being transferred may face claims for breach of contract or misrepresentation. If the declaration says a parking space is appurtenant but the seller believed otherwise, they may have conveyed more than intended. If they intended to include it but had already separately assigned it, they may have conveyed something they no longer owned. Neither outcome is desirable. Both are avoidable.
The Importance of Clarity in Conveyancing
Real property law is fundamentally a system of records. The value of a deed — and the title insurance that depends on it — rests on the public record’s ability to tell the story of ownership accurately and completely. When appurtenant rights are omitted, when the relationship between a unit and its associated rights is left implied rather than stated, that story is incomplete.
Incomplete stories create disputes.
A common misconception in real estate is that because something is legally enforceable, it is automatically practical. It is not. Good drafting is not just about being technically correct — it is about making ownership clear enough that future disputes never arise. That matters most with rights that carry real value: parking spaces, storage lockers, boat slips, dock rights, easements, and exclusive-use areas. In many transactions, these rights materially affect the purchase price. The more valuable the right, the more likely someone eventually fights over it.
The closing documents should collectively reflect what was actually bought and sold. Precision in drafting is not a technical nicety. It is the foundation on which the parties’ rights will rest for years after the transaction closes.
In condominium transactions, disputes over parking spaces, storage units, and other related rights often arise not because the law is unclear, but because the documents are. While appurtenant rights may transfer automatically under the declaration, silence in the deed can still create confusion, title issues, lender concerns, and costly disputes years later.
The practical lesson is simple: if a right matters to the transaction, the documents should clearly say so. A few extra words in a deed can prevent significant problems long after closing and ensure the public record accurately reflects what was actually conveyed.
A Note for Real Estate Agents
Attorneys and title companies are not the only professionals who can catch these issues. Agents who know what to look for can prevent most of these problems before they reach the closing table.
Check the seller’s deed first. Pull the existing deed and read the legal description. If the parking space, storage locker, or boat slip is appurtenant to the unit, it should appear there. If it does not, that is your first signal to ask questions.
Ask the property manager how the rights are transferred. Not every community handles this the same way. Some parking spaces are limited common elements that pass automatically with the unit. Others require a separate assignment or association approval. The property manager can usually tell you which applies and whether anything needs to be documented separately.
Make sure it’s on the contract. Page one (1) of the contract should specifically reference any parking space, storage unit, boat slip, or other appurtenant right included in the sale. A general description of the unit is not enough. If the parties intend for it to be included, it should be stated by number or designation.
Review the proposed deed before closing. Once the deed is drafted, read it. Confirm that whatever was agreed to in the contract is reflected in the legal description. If the parking space was included in the sale and it does not appear in the deed, raise it before closing — not after.
The Practical Takeaways
The practical takeaway is about clarity. If a right materially matters to the transaction, it should be stated clearly in writing—not necessarily because the law always requires it, but because clarity reduces risk. In real estate, ambiguity tends to become expensive over time. Although courts may eventually determine who was legally correct, most buyers, sellers, lenders, brokers, title companies, and attorneys would prefer to avoid the dispute entirely. That is why the better practice is often simple: if the property includes a parking space, storage unit, easement, dock, or other related right, the deed should clearly reference it.
Christopher Bryan, Juris Doctor Candidate 2027
Babcock Ranch, Southwest Florida
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