Over five years ago, Florida’s Third
District Court of Appeal issued its decision in IconBrickell
Condominium No. Three Association, Inc. v. New Media
Consulting, LLC, 310 So. 3d 477 (Fla. 3d DCA 2020), sending
shockwaves throughout the condominium industry. The Court
held, among other things, that the condominium’s declaration
violated the Condominium Act by designating certain building
components as “shared facilities” and incorporating them
into a hotel unit, rather than the common elements.
[1] Before IconBrickell, that type
of designation was a widely-accepted way to structure a
mixed-use condominium that included a hotel.
Attorneys at this firm quickly sounded the alarm, noting
that IconBrickell undermined a fundamental understanding of
condominium creation.
[2] For years,
hotel operators in mixed-use condominiums had assumed that
declarations meant what they said, and many said that the
hotel unit owners (not the condominium association)
controlled “shared facilities,” which intentionally included
lobbies, hallways, and elevators. This is important because,
for a “branded” project developed under a licensed name such
as Ritz-Carlton, Four Seasons, or Fairmont, the hotel
operator is contractually obligated to control the look,
feel, and experience of the project. But under the
Condominium Act, the association is responsible for
controlling and maintaining the common elements. That is the
underlying conflict.
Since IconBrickell, lower courts have attempted to apply the
decision to other mixed-use condominiums, such as the one in
Central Carillon Beach Condominium Ass’n, Inc. v. Carillon
Hotel, LLC, et al., Case Nos. 2016-011172-CA-01 and
2016-007886-CA-01 (Fla. 11th Cir. Ct. Jan. 30, 2023).
[3] But Carillon has been a case study in the difficulty of applying IconBrickell—not only deciding which parts of a condominium must be common elements within association control, but also how to reform an existing declaration.
[4] Most of
the other well-known disputes involving mixed-use
condominiums are projects that failed or faced significant
financial distress. The uncertainty raised by these other
cases led many to question the viability of these projects
going forward.
But more recently, the tide appears to have shifted back in
favor of hotel unit owners. In 2025, Florida’s Fourth
District Court of Appeal ruled that IconBrickell-style
challenges must be brought within three years of the
recording of the condominium declaration. Gallery One Condo.
Association, Inc. v. Terrace Gallery, LLC, 415 So. 3d 1076,
1080 (Fla. 4th DCA 2025) (also holding that an additional
five-year statute of limitations would apply in the
alternative). This was not a disagreement with IconBrickell
on the merits. Instead, Gallery One simply found that claims
like the ones in IconBrickell must be brought soon after the
creation of the condominium.
The Third District has not yet had the opportunity to agree
or disagree with the Fourth District’s decision in Gallery
One. Additionally, no other District Courts in Florida (let
alone the Florida Supreme Court) have weighed in on the
issue yet. However, at least one trial court has applied
Gallery One to another dispute involving a hotel operator in
a mixed-use condominium.
In a case handled by Bilzin Sumberg within Miami-Dade’s
complex business division, the Circuit Court found that an
IconBrickell claim was time-barred because of the same
three-year statute of repose applied in Gallery One. The
Circuit Court also ruled that a purported agreement between
the defendant hotel unit owner and the plaintiff residential
unit owners—an agreement that supposedly converted portions
of the hotel unit’s shared facilities into common
elements—was unenforceable. The Circuit Court reasoned that
a minority of residential unit owners could not enter into a
contract that would impose legal obligations on all
residential unit owners without their consent.
The past few years have been quite turbulent for condominium
law. The Legislature and courts have grappled with new
regulations in the wake of the Surfside tragedy, as well as
complex condominium terminations such as the one in Avila v.
Biscayne 21 Condominium, Inc., 417 So. 3d 434 (Fla. 3d
2025). Meanwhile, disputes over money and management between
and among condominium associations and unit owners remain a
staple of Florida litigation, in one form or another. But as
far as IconBrickell in particular goes, the courts might be
putting these types of challenges in their rearview mirror,
both because newer mixed-use projects are structured
differently and most (if not all) condominiums similar to
the one in IconBrickell are more than three years old.
[1] New Appellate
Case Raises Issues For Mixed Use Developments in Florida |
Insights & Events | Bilzin Sumberg.
[2] Enter the Twilight Zone: The
IconBrickell Case and Mixed-Use Condominiums | Insights &
Events | Bilzin Sumberg.
[3] Hotel Condominiums - An
Endangered Species | Florida Real Estate Development Digest
| Insights & Events | Bilzin Sumberg.
[4] Condominium Law Continues to
Evolve | Florida Real Estate Development Digest | Insights &
Events | Bilzin Sumberg. Moreover, litigation in the
IconBrickell case itself remains on-going to this day.