Q: If the condominium unit above me has a leak from a burst washer hose or pipe from inside that unit, and that causes damage to my unit, who is responsible for the repairs to my unit?
– J.H., via email
A: You probably would not believe how many potential answers exist to your one-sentence question.
The issue you raised is tricky for even experienced insurance professionals, community association managers and lawyers. It may seem logical that if you can prove that the proximate cause of the damage to your unit resulted from a leak in a neighboring unit, then the owner of that unit would automatically be responsible for your repairs. Not so. But, then again, I think most of us can agree that logic and the law do not always go hand in hand.
The correct answer to an issue of the kind you have raised depends on the nature of the leak, the kind of damage that was caused by the leak, whether the cause of the damage can be proven to be the result of someone’s negligence and other factors as well. No wonder getting to the “right” answer can be so difficult.
Anyone who has accidentally knocked over their beverage (or has given a toddler a juice box) has wondered about how such a seemingly small amount of liquid can be so hard to clean up. In a condo, a busted pipe, a broken water heater or an overflowing bathtub in one unit can cause massive damage, not just to that unit, but to adjacent units as well, within just a few moments.
The first step in analyzing who is responsible for the costs of the repair or restoration is whether the damage resulted from a “casualty” event or was a failure to perform necessary maintenance. If the leak was sudden and unanticipated, it might be an insurable event. If, on the other hand, it was a slow leak that only over time resulted in observable damage, it may not be covered by casualty insurance at all. These cases are all very fact-specific, and it is in the interest of insurance companies to always argue that the damage was caused by a failure to maintain the component that leaked rather than to automatically label it a casualty, triggering coverage.
If the leak is determined to be as a result of a casualty, the general (but not absolute) rule is that the party that insures the component that failed repairs the damage that the failure caused. Florida condo law has some convoluted rules as to the division between owner and association casualty-insurance responsibilities.
So, let’s say in your example, a pipe suddenly burst. If the pipe in the unit is insured by the association, under most circumstances, the association repairs the pipe as well as damage to any component in your unit that it insures. Under Florida law, the association insures the drywall in your unit, and you insure the wall, ceiling and floor “coverings,” such as paint and wallpaper. Under that scenario, the association repairs or replaces the pipe and the drywall in your unit. You are responsible to repaint or otherwise finish the drywall surface.
On the other hand, if the damage resulted from a slow leak that does not meet the definition of a “casualty,” who is responsible for what will depend on the allocation of the maintenance responsibilities as set forth in the declaration of condominium for your property.
Negligence is another factor. If an owner forgets to turn off a faucet and floods the unit or units below, that would not be an insurable casualty, but could well be a claim under that owner’s liability policy. The bad news is that the presence of negligence does not change the responsibility for repairing the damage. It only creates a claim for recovery for the costs associated with it. Good reason to require in the condominium documents that all owners carry liability insurance or be responsible for damage that otherwise would be covered by such insurance.
DO WE REALLY NEED AN ATTORNEY?
Q: Can a condo association prepare an amendment to the recorded condominium documents without using an attorney?
Our condo was built in the 1970s. Twice in the late 1980s and once in the early 1990s, our board, with a vote of the owners, filed for changes by going to Sarasota County and were authorized to execute those changes by a Florida notary public.
We now have some changes to be made and are wondering if this is still in effect.
– R.K., via email
A: Well, although the probable outcome would not be as dire, that would be like asking a doctor if it would be OK to perform an appendectomy on your neighbor because you read about the procedure on the Internet and it looked pretty straightforward.
Members of the Florida Bar are prohibited from assisting in the unauthorized or unlawful practice of law. The drafting of amendments to condominium documents is clearly the practice of law.
I understand that many boards look to economize where they can. Boards know what they mean to say when they propose an amendment to the recorded documents. The problem is they may not know how to say it legally, or maybe what they want to do is not even legal or enforceable.
Although it may save a modicum of money on the front end, any board desiring to enforce an amendment they prepared themselves will have the burden of proof as to its validity. I do not think an arbitrator or judge would be very sympathetic.
Notaries do not take responsibility for the content of documents they notarize. Clerks of Court also do not pass on the validity of documents, only that they are in such a form as to allow those documents to be recorded in the public record.
Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years’ experience. She is an attorney with the the Law Offices of Kevin T. Wells PA in Sarasota, concentrating her practice on community association and real estate. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to teady@kevinwellspa.com.
