Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT RANDOLPH FARMS I CONDOMINIUM ASSOCIATION, INC., Appellant, v. KIMBERLY M. OTTO and GARY M. OTTO, Appellees. No. 2D22-699 July 7, 2023 Appeal from the Circuit Court for Pinellas County; John Carassas, Judge. Adam C. Gurley of Rabin Parker Gurley, P.A., Clearwater, for Appellant. Steven H. Mezer of Becker & Poliakoff, P.A., Tampa, for Appellees. ATKINSON, Judge. Randolph Farms I Condominium Association, Inc. (the association), appeals an order that granted Kimberly and Gary Otto's motion to dismiss and dismissed the association's amended complaint. The trial court dismissed the association's amended complaint because it concluded that the association failed to participate in a necessary condition precedent to filing suit pursuant to section 718.1255, Florida Statutes (2020)—presuit nonbinding arbitration. On appeal, the association argues that the trial court erred by dismissing its amended complaint because section 718.1255 does not apply as its claims against the Ottos do not involve the Ottos' condominium unit or an appurtenance thereto. We agree and reverse the trial court's order and remand for further proceedings. The association manages and governs the Randolph Farms I condominium community. The Ottos jointly own a condominium unit within that community. The association also owns a dock comprised of a number of dock slips. The association sometimes offers its members and residents a license to utilize the dock slips. The Ottos obtained a license to use a dock slip pursuant to a Dock Slip License executed by the Ottos and the association. The Dock Slip License was attached to the association's amended complaint. See Landmark Funding, Inc. v. Chaluts, 213 So. 3d 1078, 1079 (Fla. 2d DCA 2017) ("[W]hen passing on a motion to dismiss, the trial court 'is limited to considering the four corners of the complaint along with the attachments incorporated into the complaint.' " quoting Neapolitan Enters., LLC v. City of Naples, 185 So. 3d 585, 589 (Fla. 2d DCA 2016))). In relevant part, the Dock Slip License provides the following: This License grants LICENSEE use rights in a Dock Slip identified as follows: Dock Slip Number 2, hereinafter referred to as "Dock Slip." The number assigned to the Dock Slip shall be determined by the Board of Directors [of the association] . . . and shall not be deemed to create a limited common element or any right or property interest appurtenant to LICENSEE'S Unit. The ASSOCIATION shall have the power to change any Dock Slip during the License period as deemed necessary in the sole discretion of the Board for safety issues and boat size and/or configuration. 2 .... This License shall automatically terminate upon sale of LICENSEE'S Unit by the LICENSEE. .... LICENSEE may not assign his rights or interest under this license. Upon sale or other transfer of LICENSEE'S Unit, this License shall terminate. Use rights granted to a tenant during the lease of a LICENSEE's Unit shall constitute a new License and shall be subject to the prior written consent of the ASSOCATION. In the event the Board approves any License for a tenant, the Unit Owner shall be liable for all obligations of the tenant in relation to any such License. . . . The Dock Slip, which is the subject of this License, may not be used by anyone other than the LICENSEE, who may be a properly approved tenant, or their families and visiting guests, except with the prior written approval of the ASSOCIATION. . . . [U]se of the Dock Slip shall be restricted to the LICENSEE. (Emphasis added.) The association terminated the license agreement with the Ottos. The Ottos failed to timely remove their boat from the slip. The parties engaged in presuit mediation. Later, the association filed its initial complaint against the Ottos, which was dismissed by the trial court with leave to amend. In its timely amended complaint, the association sought a mandatory injunction enjoining the Ottos from using the dock slip and declaratory relief to enforce termination of the license agreement. The Ottos responded by arguing that the dock slip is appurtenant to their condominium unit and that, therefore, the association was required to engage in nonbinding arbitration pursuant to section 718.1255 before filing a lawsuit concerning the dispute over the dock slip license. The trial court agreed with the Ottos and dismissed the association's lawsuit 3 because the association had not engaged in nonbinding arbitration as a mandatory precondition to filing suit pursuant to section 718.1255. The association timely appealed. "We review a trial court's order dismissing a complaint de novo." Landmark Funding, Inc. on Behalf of Naples Syndications, LLC v. Chaluts, 213 So. 3d 1078, 1079 (Fla. 2d DCA 2017) (citing Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007)). In this appeal, whether the trial court erred by granting the Ottos' motion to dismiss depends on whether the allegations of the association's complaint and the contents of its attachments demonstrate the inapplicability of the statutory condition precedent of participation in nonbinding arbitration. See, e.g., Palisades Owners' Ass'n v. Browning, 247 So. 3d 589, 590 (Fla. 1st DCA 2018) (affirming the denial of a motion to dismiss because the plaintiff's complaint did "not allege a 'dispute' within the meaning of section 718.1255, and therefore [the plaintiff] was not required to submit his claim to arbitration as a condition precedent to filing suit in the trial court"); Villorin v. Vill. of Kings Creek Condo. Ass'n, Inc., 789 So. 2d 1157, 1158 (Fla. 3d DCA 2001) ("Here, the clear and unambiguous language of section 718.1255(1), defining 'disputes,' shows that the complaint at issue falls outside those 'disputes' subject to nonbinding arbitration under the statute." (citing Blum v. Tamarac Fairways Ass'n Inc., 684 So. 2d 826, 828 (Fla. 4th DCA 1996)). In relevant part, the version of section 718.1255(4) applicable at the time the association filed its lawsuit provided that "[p]rior to the institution of court litigation, a party to a dispute shall petition the [D]ivision [of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation] for nonbinding arbitration." § 718.1255(4)(a). A "dispute" for purposes of this statute 4 includes "any disagreement between two or more parties that involves: (a) The authority of the board of directors, under this chapter or association document to: 1. Require any owner to take any action, or not take any action, involving that owner's unit or the appurtenances thereto." § 718.1255(1)(a). Courts have recognized that both common elements—those condominium elements that are not peculiar to a particular condominium unit—and limited common elements—those condominium elements that are peculiar to a particular condominium unit—are appurtenances for purposes of section 718.1255. See Brown v. Rice, 716 So. 2d 807, 810 (Fla. 5th DCA 1998); see also § 718.103(12), (19) (defining "[c]ondominium parcel" as "a unit, together with the undivided share in the common elements appurtenant to the unit" and "[l]imited common elements" as "those common elements which are reserved for the use of a certain unit or units to the exclusion of all other units, as specified in the declaration"). Both common elements and limited common elements are appurtenant because ownership of a condominium unit confers upon the owner the interest in that element and this interest passes with the unit. Cf. Eastwood Shores Prop. Owners Ass'n, Inc. v. Dep't of Econ. Opportunity, 264 So. 3d 264, 268 n.8 (Fla. 2d DCA 2019) ("Appurtenances are things belonging to another thing as principal and which pass as incident to the principal thing. . . . A proportionate undivided interest in the common elements pass as incident to the unit, which may be exclusively owned." (quoting Blok Builders, LLC v. Katryniok, 245 So. 3d 779, 783 n.1 (Fla. 4th DCA 2018))); Brown, 716 So. 2d at 810. An appurtenance is not personal to the owner; rather, the interest in an appurtenance is conveyed together with the property. Cf. SHM Cape Harbour, LLC v. Realmark META, LLC, 335 So. 3d 754, 759 5 (Fla. 2d DCA 2022) ("[A]n appurtenant easement is a permanent easement running with the land and passes as an incident to it." (alteration in original) (quoting Morris v. Winbar LLC, 273 So. 3d 176, 178–79 (Fla. 1st DCA 2019))); Morris, 273 So. 3d at 178–79 (" 'An easement is in gross and personal to the holder when it is not appurtenant to other lands or premises. An easement is appurtenant when the right which it represents is attached to and belongs with some greater or superior right as a dominant estate.' . . . In contrast, an easement 'in gross' is a mere personal interest in the real estate of another; it is not supported by a dominant estate." (quoting N. Dade Water Co. v. Fla. State Tpk. Auth., 114 So. 2d 458, 461 (Fla. 3d DCA 1959))); Dunes of Seagrove Owners Ass'n v. Dunes of Seagrove Dev., Inc., 180 So. 3d 1209, 1211 (Fla. 1st DCA 2015) ("Florida recognizes easements in gross, which are mere personal interests in land that are not supported by a dominant estate." (first citing Platt v. Pietras, 382 So. 2d 414, 417 (Fla. 5th DCA 1980)); and then citing N. Dade Water Co., 114 So. 2d at 461)). The terms of the license agreement attached to the association's amended complaint do not establish that the dock slip license at issue in this case is appurtenant to the Ottos' condominium unit. The Dock Slip License states that it "shall not be deemed to create a limited common element or any right or property interest appurtenant to LICENSEE'S Unit" and that the license terminates "[u]pon sale or other transfer of the LICENSEE'S Unit." Cf. Brown, 716 So. 2d at 810 (explaining that common elements appurtenant to a condominium unit "pass[ed] along with the title to the living unit" and holding that garage units were limited common elements appurtenant to the living units to which they were assigned by the developer). 6 The Dock Slip License provides that the slip may not be used by anyone other than the condominium unit owner or an approved tenant. However, even if the allegations of the complaint and the attached license agreement can be read to indicate that only unit owners and their tenants are permitted to obtain dock slip licenses from the association, that does not establish that the slips are appurtenant to the unit; while eligibility to obtain a slip might be conditioned on one's status as a unit owner or owner's tenant, the license is still personal to the licensee and does not pass with the licensee's unit. In other words, the Ottos' ownership interest in their unit does not confer upon them an interest in the boat slip; rather, the latter was acquired by a separate transaction in which it was specified that the license to use the slip does not convey with the unit from one owner to the next. The amended complaint along with its attachments asserted ultimate facts indicating that the dock slip license is not an appurtenance to the Ottos' unit. Cf. id.; SHM Cape Harbour, 335 So. 3d at 759; Morris, 273 So. 3d at 178–79; Dunes of Seagrove Owners Ass'n, 180 So. 3d at 1211. Because the amended complaint with its attachments was sufficient to establish that the dock slip is not appurtenant to the unit and therefore that litigation regarding its use does not constitute a "dispute" for the purposes of section 718.1255(1)(a), the conclusion that the association was required to participate in nonbinding arbitration was erroneous. See Summerlin v. L3 Commc'ns Integrated Sys., LP, 348 So. 3d 673 (Fla. 1st DCA 2022) ("[T]he 'question for the trial court . . . [was] simply whether, assuming all the allegations in the complaint to be true, the plaintiff would be entitled to the relief requested.' " (second alteration in original) (quoting Newberry Square Fla. Laundromat LLC v. Jim's Coin Laundry & Dry Cleaners, Inc., 296 So. 3d 7 584, 589 (Fla. 1st DCA 2020))). As such, the trial court erred by dismissing the association's amended complaint on the basis that the association had failed to satisfy a condition precedent. See Landmark Funding, Inc., 213 So. 3d at 1079 ("The operative complaint in this case alleged ultimate facts demonstrating Landmark's membership both at the time of the suit and at the time of the alleged misconduct. The complaint contained no attachments that contradicted those allegations. As such, it was legally sufficient insofar as Landmark's standing is concerned and not properly subject to a motion to dismiss on that basis."). Thus we reverse the trial court's order dismissing the association's amended complaint and remand for further proceedings consistent with this opinion. Reversed and remanded. NORTHCUTT and BLACK, JJ., Concur. Opinion subject to revision prior to official publication. 8