It’s 5 a.m. and you just woke up to use the bathroom when you discover that you forgot to turn the shower off! Water has flooded throughout your apartment and you quickly throw towels down to soak up the water while you call your building’s maintenance staff.
With the help of a dehumidifying machine, you are able to get most of the moisture out of the flooded areas. However, the wooden floor is damaged, not to mention the water that seeped through the floor to your downstairs neighbor’s unit, damaging the ceiling and artwork. Who is responsible for the flooring? And what about your neighbors newfound damage?
Finding out who is responsible for which systems and features in an owner’s unit and which are the responsibility of an association can be very difficult to determine.
In a recent interview with the South Florida Cooperator, Lee Heller, a director of business management with Associa/Association Services of Florida, a management company in Miramar, explained that owners are “typically responsible for the interior of their unit, the wall, ceiling and floor coverings. There’s a hot water heater or an air handler, their appliances, the plumbing and electrical panel.” Unfortunately, this would likely include those wooden floor tiles, unless your building administration decides to be generous.
Associations are typically responsible for the interior of the structure, or the structure of the building in general. Other areas generally include: hallways, lobby, elevators, basement, boilers, or rooftop A/C, plus the electrical wiring from the point it enters the building from the street to the point it enters the circuit breaker or junction box.
In that same article Ryan D. Poliakoff, senior counsel with Sachs Sax Caplan’s Boca Raton law office stated, “If you’re going to own a condominium, become familiar with your governing documents,” he says. “They absolutely control everything that goes on in your property. They absolutely lay out your rights. They are contractual in nature and they are also covenants that run with the land, in the case of the declarations. And they are completely enforceable – except in very rare instances when a particular clause may be discriminatory or contrary to public policy. Most of the time, anything in a condominium document – particularly in a declaration – is going to be enforceable, no matter how weird it is. You must know your documents to know this issue,” Poliakoff says.
Most Florida associations have specific repair information listed in their bylaws. However, there can be significant gray areas:
“Sometimes, documents are drafted without thinking of the consequences of how they’re describing things,” Poliakoff says. “For example, a condominium declaration could say that ‘all windows are the responsibility of the unit owner.’ Well, what about the window frame? When they say ‘window,’ does that mean the frame too? Does that just mean the glass in the window? Disputes like that come up all the time.”
The importance of adequate insurance cannot be underscored. Having homeowners insurance can be an effective way to make sure that all maintenance and repair issues are resolved.
According to Poliakoff, determining whether an event is insurable can be quite confusing and complicated, but the answers to what claims qualify can be found in subsection 11 of Florida Statute Chapter 718 (called the Condominium Act) and in, you guessed it, in the governing documents.
“The Condominium Act talks about insurance, defines separate repair and replacement responsibilities that govern in the case of hazards,” he says. “To determine whose maintenance responsibility it is, you go by what’s in the governing documents. But if it is a hazard, for example, let’s say a pipe bursts and floods out four floors of units, you then look to the Condominium Act to determine who is responsible for what repair and replacement. Section 718.111, sub. 11, states that ‘every property insurance policy issued after 2009 must provide primary coverage for all portions of the property as originally installed or replacement of lifetime in quality, and all alterations or additions made to a condominium property or association property pursuant to another provision. Coverage must exclude all personal property within the unit, or limited common elements and the floor, wall and ceiling coverings, meaning paint, and wood and tile, electrical fixtures, lighting fixtures, appliances, water gears, water filters, built in cabinets, visited window treatments…any portion of the condominium property that must be insured by the association gets property loss…damage by an insurable event shall be reconstructed, repaired or replaced as necessary by the association as a common expense.’”
Although determining responsibility for condo repairs can be gray area, by consulting with your association’s bylaws or your attorney, you will be better informed as to how to proceed.