OUT OF SIGHT DOES NOT MEAN

OUT OF MIND

By Eric Glazer, Esq.

Published June 3, 2012

The summer is here and in Florida that often times equates to lots and lots of empty condominium units because the owners have returned up north.  Just because you leave your Florida condominium for a few months however does not mean that your responsibility to maintain your unit stops once you hit the Georgia border.

Every declaration of condominium has a general clause that requires the owner of the unit to maintain his or her unit in good condition.  In fact, arbitration decisions have held that "where an owner does not reside in the unit, it is incumbent on the owner to routinely and periodically examine and inspect the unit to ensure the absence of leaks and conditions that would otherwise lead to damage to the building and its occupants.  In recognition of the fact that where multiple owners occupy a single building, a problem that develops in one unit may well affect other units and the common element components of the building."  See: Los Prados Condominium Association v. Lemley Case No. 03-6092
May 25, 2004, Arbitrator, Scheuerman.

And while we're on the subject of repairs, the question I get asked most often on the Condo Craze and HOA's radio show is "who bears the responsibility for damages caused to a unit by a leak, or even termite infestation?"

The answer often surprises many owners. In  Hallock v. Royal Hawaiian Club Condominium Association, Inc., Arb. Case No. 94-0069, Final Order (January 27, 1995), the owners sued the association seeking money damages for a termite infestation in the unit. The arbitrator held that in order for a unit owner to recover from the association for damages to his or her unit, the unit owner must prove that the damage was caused by the association's failure to maintain or repair the common elements or other portion of the condominium property that is within the maintenance responsibility of the association. Jones v. Lake Harbour Towers South Condominium Association, Inc., Case No. 93-0266, Arbitration Final Order (DBPR, November 16, 1994)(Citing Janke v. Corinthian Gardens, Inc., 405 So. 2d 740 (Fla. 4th DCA 1981) and Schmeck v. Sea Oats Condominium Association, Inc., 441 So. 2d 1092 (Fla. 5th DCA 1983)). Further, in order to recover damages either for injury to himself or guests or for damage caused to his unit by the common elements, an owner must prove that the association was negligent in failing to repair the cause of the damage, or that the association breached its contractual duty under the declaration to maintain the common elements.  

 By way of example, if a leak in the plumbing causes damage to a unit, an association is only responsible for damages to the unit if the leak was caused by common element plumbing or if the leak was caused by plumbing within the maintenance responsibility of the association according to the declaration. Further, the owner would have to prove that the association was negligent in failing to repair the leak, or that the association breached its contractual duty under the declaration to maintain the common elements. Similarly, if damage to a unit was caused by a leak in the roof of the building, the association would be responsible for damages to a unit only if the roof was a common element or a portion of the condominium property within the maintenance responsibility of the association and if the association was negligent in failing to repair the roof or it breached its contractual duty under the declaration to maintain the common elements.

The unit owner is often at a disadvantage when attempting to prove that damage to his or her unit occurred as a result of the negligence of the association, because expert testimony is typically required and doesn't come cheap.  In cases involving a small sum of money, like the cost to repair a bathroom ceiling, it obviously may not be worth the cost of filing suit, especially when we keep in mind that the prevailing party would also be entitled to an award of attorney's fees and costs.

On the other hand, if the damages to the unit are severe, and the negligence of the association obvious, filing suit may be your only remedy, especially if you don't carry insurance that covers your damages.