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03/22/12 It's The Law: Who Repairs Water Damage In A Condominium

Question: I live on the ground floor of a condominium. Some of my windows do not lock and I think it's a security problem. I asked the president of our condominium to arrange repair for the windows and he told me the windows are my responsibility. My insurance agent told me I had to insure the interior of the unit only, from interior of drywall to interior of drywall. He says the windows are the association's responsibility. Who is right?

Answer: This is actually a fairly complex area of law which the legislature has attempted to "fix" many times. The primary focus of the legislature has been insurance coverage. The Condominium Act has been frequently amended to clarify who insures what in a condominium.

The latest version of the legislature's wisdom can be found at Section 718.111 (11) of Florida Statutes.

The statute now requires that property insurance policies issued to a condominium association provide primary coverage for all portions of the condominium property as originally installed or replacement of like kind and quality in accordance with the original plans and specifications.

The coverage must exclude all the personal property within the units or limited common elements, floor, wall and ceiling covering, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops and window treatments which are located within the boundaries of unit and serving only the unit. That property and insurance thereon is the responsibility of the unit owner.

Any portion of the condominium property that must be insured by the association which is damaged shall be reconstructed, repaired or replaced by the association as a common expense. The statute requires that all reconstruction work after property loss be undertaken by the association. The unit owner may under take reconstruction work on portions of the owner's unit with prior written consent of the board of directors.

Unit owners are responsible for cost of reconstruction of any portion of condominium property for which the unit owner is required to carry property insurance. The unit owner is responsible for the cost of any damage not paid by insurance proceeds if the damage was caused by intentional conduct, negligence or failure to comply with terms of the declaration of condominium or association rules by the owner, owner's family or person invited on site by the unit owner.

An association may opt out of the statutory allocation of repair or reconstruction expense and allocate repair or reconstruction expense in the manner provided in its declaration of condominium by majority vote of the total voting interests of the association. If the association does opt out, it must record notice in the public records.

The statute seems clear. What is confusing is that the statute only addresses casualty loss or damage. It does not apply to normal and routine maintenance. Hence, the conflict between your insurance agent and president. Your insurance agent would be right under the statute with respect to a casualty loss. A casualty loss is a sudden destruction and the perils insurance are insured against are usually wind storm, fire, flood or like. But, even casualty loss can be debated.

Think of a hot water heater leak. If the hot water heater gives way and floods property causing damage to multiple units, it is a sudden catastrophe that will likely be covered by the association's insurance as a casualty loss. In contrast is a slow drip which gradually seeps into the unit below and over time creates a mold problem. In that case, there is no sudden catastrophe and it is likely the association insurance carrier will deny coverage.

Since the locks on your windows do not appear to have been the subject of casualty loss, responsibility for maintenance and repair will be as set forth in your declaration of condominium. Are the windows part of the unit or defined as part of the common elements? Does the declaration make the unit owner responsible for maintenance and repair of windows? If so, is there anything in the governing documents creating ambiguity so that it might be argued the unit owner replaces windows but the association replaces frames or locks?

Many declarations of condominium are vague as to responsibility for maintenance and repair of windows and doors. That is particularly true of older documents. Over time, the need for clarity in assigning responsibility for maintenance and repair of windows, doors and screen enclosures has become more obvious because these items needed to be repaired and replaced as buildings age. In the early days of the Condominium Act, those buildings were new or had not been built. Forty years later, much maintenance is needed.

Your question highlights the confusion between insurance repair and maintenance responsibility. The correct answer to your question can only be provided by review of your condominium documents and understanding of the Florida Condominium Act. For that reason, I suggest you consult with an experienced attorney about your specific situation.

By: William G. Morris, Esquire

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