The following Q&A offers important information that needs to be considered when determining responsibility for hurricane damage to a condominium.
Oct. 2, 2017 – Question: Our condominium suffered wind damage from Irma and the biggest problem is the windows. Our documents require the owners to repair and replace windows but the owners are claiming it is the association's responsibility. Who is right? –B.A., Stuart
Answer: Under the current statutes, the first question in this analysis is whether the damage was caused by an insurable event. If the damage is from a hurricane, this is going to be an insurable event. Therefore, window replacement responsibility is not necessarily governed by the documents, but rather by the statutes. Specifically, section 718.111(11) of the Florida Statutes provides that the condominium association is responsible to repair and replace property insured by the condominium association. It is important to note that insurance responsibility may be the same, or it may be different, from the responsibility set forth in your governing documents.
Thus, I would contact your insurance carrier and determine whether your condominium policy covers the windows. If so, the condominium association will be liable to repair and replace the windows damaged by Irma and the cost would be a common expense.
Notwithstanding the above, there are a few exceptions. First, the statute provides that the condominium is responsible to insure "all portions of the condominium property as originally installed or replaced of like kind and quality, in accordance with the original plans and specifications." So, if an owner previously replaced the original windows with something other than "like kind and quality" then the condominium may not insure those improved windows.
Second, the statutes also allow a condominium to "opt out" of the above analysis. If the association has opted out, the analysis would be governed by your governing documents and not the statute.
Third, the condominium association is not responsible to repair or replace when the damage is caused by intentional conduct, negligence, or the failure to comply with the rules. For example, if the rules require the owner to deploy hurricane shutters and the owner failed to do so, the condominium association may not be responsible for those particular windows under the above analysis.
My recommendation is you contact your insurance carrier as well as a licensed Florida attorney to make sure that the condominium association is acting under its documents and the applicable statutes.
Article from www.floridarealtors.org, written by John C. Goede Esq., co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.