In property law, owning land includes owning the earth under the surface and air above the surface. Florida’s First District Court of Appeals recently addressed airspace condominium parcel rights in Sterling Breeze Owners’ Ass’n, Inc. v. New Sterling Resorts, LLC, Case No. 1D17-1553 (September 5, 2018).

The developer of Sterling Breeze built a 145 residential unit, 22-story condominium. The declaration of condominium contained an easement and reservation (“Reservation”) expressly excluding four ground-floor “Associated Commercial Parcels,” which the developer retained ownership of for commercial purposes. The declaration provided the Associated Commercial Space owner would maintain the interior of the parcel and be responsible for its expenses.

The condominium association sued the developer to nullify the Reservation arguing the Associated Commercial Parcels were condominium “airspace” not subject to separate private ownership. The association sought declaratory relief, quiet title to the parcels, and unjust enrichment for the expenses of utilities and maintenance. The trial court ruled in favor of the developer on the declaratory relief and quiet title claims, but awarded the association unjust enrichment damages of $332,752.93.

On appeal, the First District Court of Appeal analyzed Fla. Stat. §718.103(18)’s definition of “land,” which provides as follows:

“Land” means the surface of a legally described parcel of real property and includes, unless otherwise specified in the declaration and whether separate from or including such surface, airspace lying above and subterranean space lying below such surface. However, if so defined in the declaration, the term “land” may mean all or any portion of the airspace or subterranean space between two legally identifiable elevations and may exclude the surface of a parcel of real property and may mean any combination of the foregoing, whether or not contiguous, or may mean a condominium unit. (Emphasis added).

Based on the above definition, the First District Court of Appeal affirmed the trail court’s summary judgments on the declaratory judgment and quiet title claims ruling the Condominium Act allows certain portions of airspace be excluded from the condominium.

However, the First District Court of Appeal reversed the unjust enrichment award ruling that since the declaration of condominium’s Reservation expressly provided the developer was responsible for the expenses sought the proper cause of action was a breach of contract claim – not unjust enrichment.

With the increase of towering condominiums built in metropolitan areas, which include mixed uses, we are likely to see many more court decisions address airspace rights and issues.