A Common Legal Quagmire in the Sunshine State…
Plumbing problems often occur in condominium buildings in florida . Due to the shared structural elements of condominiums, a pipe that bursts in one unit often causes collateral damage to neighboring units. Determining liability for water damage under Florida law can be challenging as there are a patchwork of laws, rights, and duties that could apply.
Florida’s Condominium Act
FS 718.111, Florida’s condominium act, defines common elements in a condominium and assigns to the condominium association a non-delegable duty to maintain and repair these elements. This duty includes maintaining insurance on the elements at all times.
Section 718.111(11)(f) provides that an association has a general duty to maintain all structures on its premises except the following (which are the responsibility of the individual owners):
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.
So, the association has the ultimate responsibility to repair drywall, ceilings, and floors, but the individual unit owner is generally responsible for maintenance and repair for any coverings to these surfaces.
Even though the Association has ultimate responsibility to maintain common elements, its financial responsibility for repairs can be shifted to individual owners depending on the cause of the water damage. The Florida Condominium Act (“Act”) decides liability depending upon whether the damage was caused by an insurable event (such as a weather event) 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:
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).
The effect of this mandate is that, when damage results from an insurable event, the liability provision of the Act quoted above will control. On the other hand, when damage results from a non-insurable event, then other provisions of the Act or the Association’s governing documents (Declaration and Bylaws) may control and may shift responsibility to the unit owner for the damage.
What About When Plumbing Issues in a Neighboring Unit Cause the Damage?
Where a neighboring unit is the source of the leak, and the specific cause of the leak was not foreseeable, such as a burst pipe, the association will be responsible for common elements as defined in the act (see preceding section) Any damage to the interior of the unit is the unit owner’s responsibility pursuant to § 718.111(11). The owner’s condo unit insurance policy should cover all damage not covered by the association’s policy. Because of the liability of individual owner’s for interior damage, many condominium associations require that all owners carry property insurance coverage for this type of damage.
If, however, the damage results from the neighboring unit owner’s failure to maintain or timely fix a foreseeable or known issue, then different rules apply. A unit owner is responsible for the costs of repair or replacement of any portion of the condominium property that is damaged by his negligence or intentional conduct, or his failure to comply with the terms of the declaration or rules of the association. § 718.111(11)(j)1. Also, the association is not required 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. . § 718.111(11)(n).
An upstairs unit owner knows that his toilet backs up periodically but neglects to have it serviced. He attempts to use the toilet in spite of its condition, and then the backup of sewage causes a pipe to burst in the downstairs unit, which results in flooding, and damage to the downstairs unit. Pursuant to Florida Statute § 718.111(11)(j)(1), the upstairs unit owner would be liable for the damage to all portions of the condominium property not covered by the condominium’s insurance policy because he acted negligently. The statute also holds the upstairs unit owner liable for the damage to the downstairs unit.
As you can see, determining liability for property damage in a condominium can be a challenge, and may involve litigation. If you have incurred damage to your condominium or are being asked to pay for damage to your neighbor’s unit, you need an experienced attorney on your side. Call John Clarke Esq. today for a free consultation at (954) 556-8952!