Forgetting to turn on the air conditioner before heading back up north for the summer and coming back to find mold growth.
An undetected pipe leak.
Forgotten running faucets that spill over onto the floor and beyond.
These types of incidents can be inconvenient and expensive for anyone, but they pose a heightened threat to any of the persons living in the approximately 1.5 million residential condominium units in Florida.
By its nature, condominium ownership requires cooperation and some forfeited freedom of its residents by putting neighbors in close proximity to each other with shared common elements. As summarized by Florida Fourth District Court of Appeal,
[c]ondominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization.”
Hidden Harbour Estates, Inc. v. Norman, 309 So.2d at 181–82. This close proximity of living creates an expanded zone of risk, with the action (or inaction) of one person potentially affecting multiple neighbors.
As a result, unit owners are charged with being more diligent in the use of their units. For example, some condominiums pass rules regarding the frequency of cleaning out dryer vents to reduce the risk of a fire. In a single family residential home, neglecting to change a dryer vent can be done at one’s own risk; in a condominium where a fire can quickly cause widespread destruction to an entire building, that risk is unknowingly being assumed by all of the unit owners – not just the resident who opts to run the dryer for a fifth time instead of folding laundry.
But regardless of the language in governing documents that require owners to maintain their units, or take certain actions and refrain from others, accidents happen. When damage results, who is responsible? More often than not, the answer to the question “who is responsible for fixing this?” is, frustratingly for owners and associations, “it depends.” And it depends on a number of factors.
Generally, the boundaries of a condominium unit are confined to the unfinished surfaces of the walls, floor, and ceiling. The rest of the condominium property is defined as either a common element or a limited common element. Most condominium documents will set forth the condominium association’s obligation to maintain, repair, and replace common elements.
This is true regardless of the cause of the damage because, generally, the association cannot afford to wait on making urgent repairs where delay can cause additional damage. It is in the association’s best interest to get the work done as soon as possible and with vendors of its choosing, provided there are no spoliation of evidence issues preventing the commencement of work.
Fla. Stat. § 718.113 codifies this maintenance obligation by imposing a statutory duty on condominium associations to maintain the “common elements” of the condominium. Consistent with this statute, a condominium member (or its insurer through subrogation) can bring legal action where the association fails to fulfill its duties under the governing declarations. Correspondingly, under Florida law, “[a] condominium association may be liable for damages that result from negligent maintenance of the common elements.” In re Colony Beach & Tennis Club Ass’n, Inc., 456 B.R. 545, 562 (M.D. Fla. 2011).
This maintenance standard is most frequently tested by main drain pipes services an entire condominium building; damaged pipes and the incidental damage they cause are a common source of condominium litigation and subrogation actions.
Assuming a common element has caused damage to an owner’s condominium unit, it must then be determined whether the association has acted negligently. As noted above, Fla. Stat. § 718.113 creates a statutory duty for condominium associations to maintain the common elements. This is not a strict liability statute; liability triggers only upon a showing of negligent maintenance.
When condominium associations face negligence claims, a plaintiff must establish:
- causation; and,
If the plaintiff can establish, for example, a leak resulted from a common element such as a main drain line, the plaintiff would most likely satisfy establishing that the association owed a duty with respect to the drain line. In this hypothetical, if this issue were to proceed to trial, the plaintiff must establish that the association acted unreasonably in maintaining the common element. The jury would then have to determine what reasonable steps the association should have taken.
Considering the crux of these claims come down to whether an association failed to maintain common elements, associations are encouraged to have a routine maintenance schedule so the association can position itself in the best light when facing a negligence claim. Routine maintenance can include pipe scopes, annual roof inspections and annual inspections of all exposed plumbing.
Additionally, associations should ensure their governing documents provide for notice obligations which require owners to promptly report any issues to the association. This is true even if the unit owner only resides in the unit a fraction of the year; there should be an affirmative obligation on the owner – or the owner’s representatives – to periodically check on the vacant unit to ensure there are no festering maintenance issues.
As explained above, the condominium association is generally responsible for maintaining common elements. However, a maintenance obligation should be distinguished from a financial obligation. In other words, even if the association has an obligation to repair a water-damaged party wall because it is a common element, the financial obligation may ultimately be put back on an owner whose negligent actions (or inactions) caused the leak.
Generally, where there is damage to condominium property (including common elements) for which the association has to maintain insurance pursuant Chapter 718, Florida Statutes, the association could be liable for the cost of the repair as a common expense if the damage is an “insurable event” as determined by the association’s insurance policy.
In the absence of an insurable event, the maintenance provisions of the governing documents will control who is financially responsible for the damage. A number of questions need to be reviewed in performing this analysis:
- Does the association have an insurable interest in the property that sustained damage?
- Was the damaged caused by an “insurable event” under the relevant insurance policies?
- If there was no insurable event, do the governing documents address the financial obligations for this type of incident? For example, the declaration of condominium may include language that specifically states an owner must pay the cost of repairing common elements where the damage is caused by his or her negligence or carelessness.
Future Subrogation Claims
Condominium associations may find some welcomed relief on future claims related to common elements thanks to new legislation. Senate Bill 630, which took effect in July 2021, amended § 627.714(4), Fl. St., to provide that:
Every individual unit owner’s residential property policy must contain a provision stating that the coverage afforded by such policy is excess coverage over the amount recoverable under any other policy covering the same property. If a condominium association’s insurance policy does not provide rights for subrogation against the unit owners in the association, an insurance policy issued to an individual unit owner in the association may not provide rights of subrogation against the condominium association.
The new legislation corrected what was previously an imbalance in subrogation claims between associations and unit owners. Association property insurance policies frequently provide for waiver of subrogation against unit owners. However, prior to the enactment of this legislation, policies issued to condominium unit owners (HO6 policies) may not have provided a waiver of subrogation against the association. As a result, the association was forfeiting its right to pursue subrogation claims while unit owners could continue to pursue subrogation against associations, driving up insurance premiums for associations forced to defund subrogation claims even where the claims proved to be unfounded.
While this new statute is in its infant stages and therefore remains relatively untested, it is likely the law applies to new policies issued after the date the law was enacted on July 1, 2021. Policies issued prior to July 1, 2021 may still be ripe for subrogation claims, but as these policies are renewed, the imbalance will be phased out as HO6 insurers are required to comply with the revised statute upon issuance of a new policy.
Assessing damage in a condominium is fact-specific and must be done on a case-by-case basis. However, immediately upon learning of damage, an association’s board of directors would be well-advised to provide written notice to its insurance carriers of a potential claim. Failure to do so could bar an otherwise insurable claim, or result in coverage with rights of reservation, and hinders the insurance carrier’s ability to assist the association. Additionally, associations would be served well by performing routine maintenance to common elements outlined in their condominium documents.
If you or your association needs legal representation regarding insurance disputes or drafting and interpreting association documents to assess its maintenance and insurance obligations, please contact Steven or Colby by email at email@example.com or firstname.lastname@example.org.