Q: We recently discovered that the air handler drain in the unit above us became clogged resulting in water damage to our unit. Our insurance covered some of the costs, but not all. We were not in the unit when this occurred and it was some time before we discovered it, resulting in mold. Would our condominium association be responsible for the uncovered damage? For example, we had to repaint the unit, and replace the water heater and two vanities that had to be thrown out. (G.T., via e-mail)
A: The first question is whether the incident would be legally classified as a “casualty,” referred to in the condominium statute as an “insurable event.” A casualty is an unexpected and sudden event. Slow and progressive leaks are generally not considered casualties. Casualties are typically covered by insurance, maintenance is typically not.
In my experience, air handler overflows are usually considered an insurable event by applicable insurers. This seems to be your case, since you state that your individual unit insurer, called the “HO-6” insurer, has provided coverage, just not enough money to repair all of your damage.
Section 718.111(11) of the Florida Condominium Act sets forth the respective insurance requirements as between the association and unit owners’ insurance. This coverage is often described as “no fault,” meaning that insurance is available regardless of whether the negligence of any party (such as the association or a unit owner) caused or contributed to the damage. Per the statute, the association must generally insure both the units and common elements, as originally constructed by the developer, and replacements of like kind and quality, subject to certain exceptions. Unit owners are required to insure 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 that unit.
In your situation, the damage you describe appears to be items that are your responsibility to insure, as listed above. If you could show that there was negligence that led to the water intrusion, then you could consider making a claim against the party whose fault created or contributed to the mishap. That would require a close review of the condominium documents by a competent attorney to determine who was responsible to maintain the drain in question. It might be the association, it might be your upstairs neighbor, and if the drain also serves your unit, it might be you, or partially your responsibility.
After you have identified the party with the responsibility to maintain the element, you must then establish lack of due care. Not every water intrusion event results from the negligence of a party. Foreseeability and industry standards of care are important legal elements. You might also expect that an argument could be asserted that you were negligent, as you state that your unit was empty for some time before the water intrusion was discovered. The other party may argue that if you had your unit regularly inspected and promptly reported the situation, the damage could have been mitigated.
Q: We have board members that have been on for years and years and only if they step down or die will they be replaced. It’s to the point where owners do not bother to even run against them. Is there a term of office limit for board members of a condominium association? (D.G., via e-mail)
A: Section 718.112(2)(d)2. of the Florida Condominium Act states that a board member may not serve more than 8 consecutive years unless approved by an affirmative vote of unit owners representing two-thirds of all votes cast in the election or unless there are not enough eligible candidates to fill the vacancies on the board at the time of the vacancy.
This law was enacted July 1, 2018. There has been substantial debate, discussed extensively in my previous columns, as to whether this law is retroactive. As of this writing, the prevailing view in the legal community is that the law is effective July 1, 2018, and the term limits should be calculated as of that date.