The Maintenance and Repair Responsibilities of Condominium Associations and Unit Owners When Damage Occurs
By Hans C. Wahl May 4, 2021 Posted in Community Association Law Share
Determining which entity is responsible for the cost of repair, replacement, and reconstruction when condominium property is damaged can be confusing. Unit owners and condominium association leadership (board members and managers) often disagree about who is responsible for the expense after damage occurs. The answer depends upon many factors. Florida law is meant to bring clarity to this issue but is oftentimes misunderstood and a source of confusion.
Determining the responsible entity begins by asking what caused the damage that necessitates the repair and replacement? The Florida Condominium Act (“Act”) assigns liability based upon whether damage was caused by an insurable event, such as a hurricane, fire, or flood, or other causes, such as normal wear and tear or intentional and negligent acts. The Act also provides insurance coverage mandates for condominium associations. When damage results from an insurable event then the requirements of the Act, concerning the responsible entity, will control and when damage results from a non-insurable event, each associations’ governing documents will control.
The Act’s insurance requirement for condominium associations is as follows:
Every property insurance policy issued or renewed on or after January 1, 2009, for the purpose of protecting the condominium must provide primary coverage for: (1) all portions of the condominium property as originally installed or replaced of like kind and quality, in accordance with the original plans and specifications; (2) all alterations or additions made to the condominium property or association property; and (3) the coverage must exclude all personal property within the unit or limited common elements, and floor, wall, and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing which are located within the boundaries of the unit and serve only such unit. Such property and any insurance thereupon is the responsibility of the unit owner. Fla. Stat. § 718.111(11)(f) (Emphasis added.)
Unit owners are responsible for the cost of reconstruction of any portions of the condominium property for which the unit owner is required to carry property insurance. Fla. Stat. § 718.111(11)(g)2.
Any portion of the condominium property that must be insured by the association against property loss . . . which is damaged by an insurable event shall be reconstructed, repaired, or replaced as necessary by the association as a common expense. Fla. Stat. § 718.111(11)(j).
The Act mandates condominium associations to carry insurance on the condominium property, except for the items underlined above which unit owners are responsible for insuring. When an insurable event occurs, the association is obligated to repair and replace the items that it is statutorily mandated to insure. Similarly, unit owners are responsible for repairing and replacing the items underlined above when an insurable event damages their units. The above-cited statute takes precedent over whatever an association’s governing documents may state on this issue.
The Florida Department of Business and Professional Regulation, Division of Condominiums, has held that even if a condominium declaration makes an item the unit owners’ responsibility, when that item is not among these statutory exceptions, the declaration provision is preempted by the Act and the association remains responsible for the damage to that specific item. See In re Petition for Declaratory Statement Molokai Villas Condo. Ass’n, Inc., DS 2006-028, Docket No. 2006035317 (Aug. 28, 2006). In that case the DBPR stated that Section 718.111(11), Florida Statutes, “controls over any provision to the contrary in a declaration of condominium” and is “deemed to apply to every residential condominium in the state, regardless of the date of its declaration.” Id.
For damage caused by events other than an insurable event, the situation is handled differently by unit owners and associations. “In the absence of an insurable event, the association or the unit owners shall be responsible for the reconstruction, repair, or replacement as determined by the maintenance provisions of the declaration or bylaws.” Fla. Stat. § 718.111(11)(j). Consequently, when damage to a unit is caused by something other than an insurable event, such as leaking pipe or malfunctioning HVAC system, the association’s governing documents must be referenced to determine which entity is responsible for the resulting damage. Either the association or the unit owner could be responsible depending upon the condominium declaration.
The Act also addresses how damage from other common causes is handled. A unit owner is responsible for the costs of repair and replacement of any portion of the condominium property when damage is caused by intentional conduct, negligence, or the failure of a unit owner and his/her guests to comply with the covenants, rules and restrictions. Fla. Stat. § 718.111(11)(j)1. Condominium associations are not responsible for the repair and reconstruction expenses for property loss or damage to any improvements installed by a current or former owner of a unit if the improvement benefits only the unit, whether or not such improvement is located within the unit. Fla. Stat. § 718.111(11)(n). The repair and replacement responsibility for damage at condominium associations can be categorized as follows:
Insurable event damage: The association is responsible for everything except personal property within the unit or limited common elements, and floor, wall, and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing which are located within the boundaries of the unit and serve only such unit. Such property and any insurance thereupon are the responsibility of the unit owner.
Non-insurable event damage: The association and/or the unit owners are responsible for the reconstruction, repair, or replacement of the damaged item as determined by the maintenance provisions of the association’s declaration or bylaws.
Damage caused by intentional acts, negligent acts, covenant violations or prior improvements made by a unit owner to the property: A unit owner will be responsible for any damage that results from (1) intentional acts; (2) negligent acts; (3) failure to comply with association covenants and restrictions; and (4) improvements made to the property by current or former owners.
A condominium association should seek legal guidance from an attorney knowledgeable in condominium law if it has any questions or concerns on maintenance, repair and replacement responsibility due to damage to condominium property.
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