Damage to condominium property and the inevitable ensuing argument over the party responsible for the cost of repair is a familiar scenario for many association members. Unit owners, board members and association managers are often unsure of which entity is responsible for the maintenance, repair and replacement of certain items when damage occurs. Deciphering Florida law on this issue can be a confusing task as the answer often depends on a multitude of variables. This blog post provides an overview and summary of Florida law on the maintenance, repair and replacement responsibility within your condominium association when damage occurs.
When determining the entity responsible for the repair and replacement of damaged property, the first question to ask is what caused the damage that necessitates the repair and replacement? The Florida Condominium Act (“Act”) makes a distinction on liability depending upon whether the damage was caused by an insurable event (such as a hurricane, fire, or flood) or other reasons (such as normal wear and tear, an intentional act or a negligent act). The Act mandates insurance coverage requirements for all condominium associations. The effect of this mandate is 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 then the Association’s governing documents (Declaration and Bylaws) will control.
The Act’s insurance mandate for condo associations states 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)
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).
This statute requires condominium associations to obtain and carry insurance for all of the condominium property, excluding the items underlined above which are the responsibility of each unit owner to insure. When an insurable event occurs, the association must repair and replace the items that it is statutorily mandated to insure. Conversely, a unit owner is responsible for repairing and replacing the items underlined above when damaged by an insurable event. This is regardless of what an association’s governing documents say on this issue.
The Florida Department of Business and Professional Regulation, Division of Condominiums, explains that even if a condominium declaration makes an item the unit owners’ responsibility, when that item is not among these statutory exclusions, 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 decision 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.
What about damage caused by events other than an insurable event? “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). In other words, when damage is caused by something other than an insurable event, the association’s governing documents must be referenced to determine what entity is responsible for the damaged item at issue.
The Act even provides a couple of “catch all” provisions for when certain situations occur. For example, a unit owner is responsible for the costs of repair or replacement of any portion of the condominium property if such damage is caused by intentional conduct, negligence or the failure to comply with the terms of the declaration or rules of the association by a unit owner or the owner’s guests and tenants. Fla. Stat. § 718.111(11)(j)1. Moreover, the association is not obligated to pay for any repair or reconstruction expenses due to property loss or damage to any improvements installed by a current or former owner of the unit if the improvement benefits only the unit, whether or not such improvement is located within the unit. Fla. Stat. § 718.111(11)(n).
This means regardless of what the association’s governing documents state about which entity is responsible for damage to certain items, the unit owner will be responsible for any damage that results from (1) intentional acts; (2) negligent acts; (3) failure to comply with association rules; and (4) improvements made to the property by current or former owners. To summarize, repair and replacement responsibility can be categorized as follows:
Damage caused by an insurable event: The association is responsible for everything except 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.
Damage caused by a non-insurable event: The association and/or the unit owners shall be 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, rules violations or prior improvements made by a unit owner to the property: The unit owner is responsible.
Condominium property damage and the repair and replacement requirements are often a contentious, costly and confusing aspect of condominium ownership. When facing this issue, it is recommended that you contact a competent and experienced association attorney for legal guidance.