Q: What are the powers and duties of a condominium association in Florida regarding unit repair and reconstruction to treat mold after a hurricane? (L.N., via e-mail)
A: Like many legal issues, “it depends.” Mold has been a scary word in association operations over the past couple of decades, primarily after a couple of large jury verdicts for alleged mold related personal injuries received national attention. The insurance industry was quick to read the tea leaves and many excluded mold related claims or limited the amount of coverage under their policies, although I believe those practices have relaxed a bit.
These events led to a cottage “mold industry” and Florida law now licenses certified mold inspectors and remediators. Of course, Florida’s hot and humid climate, and the fact that many units are unoccupied during the hottest and muggiest time of the year, don’t make things any easier.
The first place to start is to determine if mold has grown on a building element the association is required to insure, and if the event causing the mold arose from an “insurable event,” sometimes referred to as a “casualty.” A casualty, in the law is a sudden unanticipated event, such as a hurricane. Conversely, slow, continuous leaks are not considered insurable events under most policies.
The association’s responsibility for insuring building elements is broad under the Florida Condominium Act, and includes all portions of the building as originally constructed, or replacements of like kind and quality, less what I call the “Florida Exclusions.” In general, the Florida Exclusions are: all personal property within the unit or limited common elements; floor, wall, and ceiling coverings; electrical fixtures; appliances ;water heaters; water filters; built-in cabinets and countertops; and window treatments.
Making a “one-size-fits-all” answer more challenging still, some mold situations originally attributable to an insurable event, may have been prolonged or made worse by actions within the control of the unit owner, such as internal unit temperature and humidity control. The provisions of the declaration of condominium will also play a role in looking at this issue.
The longstanding mantra for associations to follow after a hurricane hit or another weather-related event is to “shore-up,” dry-in,” and “dry out.” In essence, this means make sure the building can be safely entered, take all prudent steps to stem further water and moisture intrusion, and remove the humidity from the units and the building. This is the standard post-hurricane mold remediation and prevention protocol and is typically undertaken by the association. Of course there are exceptions to the rule, such as where the damage is so extensive (e.g., roofs blown off, windows blown out, etc.) that some other approach is indicated.
The best advice I can give is to be proactive, immediately involve the association’s insurance professionals, and lawyer up.
Q: I am under a pre-construction contract to buy a condominium unit. What rights does the developer have to change the documents during the building process and what are my rights if I don’t like the change? (M.A., via e-mail)
A: Section 718.503(1)(a)1. of the Florida Condominium Act requires sales contracts for residential condominium units to state that the agreement is voidable by the buyer by delivering written notice of the buyer’s intention to cancel within 15 days after the date of receipt from the developer of any amendment that materially alters or modifies the offering in a manner that is adverse to the buyer.
For example, in a 2008 Florida appellate decision, a $90-per-month budget increase attributable to a multimedia system was considered an amendment that materially altered the offering in a manner adverse to the buyer because it increased the cost beyond the original estimate. Similarly, in a 1993 appellate case, a 65 percent increase in the cost of “extras” was deemed a material alteration that was adverse to the buyer, triggering the buyer’s right to cancel the contract. In 2009, another court construed an amendment that called for the addition of cabanas by the swimming pool as an adverse material alteration.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.