“Condo Maintenance Responsibilities Disputed” – News-Press
Q: As a unit owner, I have come across a provision in our condominium documents that is unclear about maintenance responsibilities. This ambiguity has sparked different interpretations, resulting in disagreements. What is the best way to clarify this provision and resolve the disagreements that stem from it within our community? We would rather hash things out than take the issue to court. (M.M., via e-mail)
A: The maintenance, repair and replacement provisions of a declaration of condominium are one of the most important sections of that document, and often the most poorly written. Every condominium has its own unique physical layout, there is no “one size fits all” or “boilerplate” language that can be “plugged in” to a declaration. Rather, it takes some work and policy clarity to draft these provisions correctly.
For this reason, many developer-drafted documents are sorely lacking the detail and precision required for a properly drawn maintenance covenant. I have seen more than a few associations spend several thousand dollars on legal fees arguing about who has to replace a screen that costs a few hundred dollars. Plumbing pipes, electrical lines, air conditioner systems, balconies/lanais, windows/glass doors, boat docks and garages are among the most frequent sources of dispute.
The underlying legal framework is rather simple. “Condominium property” is broken down into two main components, the “unit” and the “common elements.”
What portions of the property are part of the “unit” depends on how the declaration was originally written, and there are four or five basic variations we see in defining “unit boundaries.” Once it is determined what portion of the condominium is comprised of “units” the default position of the law is that the unit is maintained by the unit owner unless the declaration provides otherwise.
All portions of the condominium property not included in the units are part of the “common elements.” The default position of the law is that common elements are maintained by the association, as a common expense. There is an exception for “limited common elements,” which are those common elements reserved for the exclusive use of one unit or group of units, as set forth in the declaration.
Maintenance of limited common elements can be addressed in one of three ways. First, they can be maintained by the association as a common expense just like all other common elements, and that is the default position of the law if the declaration is silent on the subject. Second, the declaration can require limited common elements to be maintained by the owner, meaning the owner contracts for the work and pays for it directly. The third option, sometimes called the “limited common expense” approach, provides that the association maintains the limited common element but only the unit owner who has the right of use is assessed for those costs.
Using the limited common expense approach also triggers the requirements of the Florida Administrative Code which basically require “sub-budgets,” including reserves, for these items. The Florida Condominium Act also requires that when this approach is used, that the declaration “describe in detail” how the costs are allocated.
The short answer to your question is that the owners should prevail upon the board to retain competent legal counsel to review the existing declaration of condominium and provide a written interpretation of “who maintains what” if there are differences of opinion on the issues. More importantly, the existence of disagreement suggests that your community would be best served by having the declaration amended to clearly set forth the allocations of maintenance responsibilities and cost sharing.
It would obviously be best to preface an amendment vote with an information gathering and dissemination process. I have found that “town hall meetings” using the common video conference platforms available now are highly effective.
It is also important to note that there is a difference between “maintenance” and “repair after casualty” which is the repair or replacement of an item after an “insurable event,” such as a hurricane. While maintenance is almost entirely controlled by the language of the declaration, repair after casualty is almost entirely governed by the condominium statute. This is another important concept that a qualified attorney can explain to your association.
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.
