“Whose Obligation is it Anyway? Issues Encountered in Condominium Maintenance and Restoration Projects” – FLCAJ Magazine
In 2025, now that many milestone inspections reports have been completed and the structural integrity reserve study (SIRS) data is in, condominium associations are taking a close look at all of the information, and boards are asking themselves “how do we plan for and execute these maintenance and restoration projects?” What must be fixed, and who has to fix it?
Condominium associations have always been responsible to ensure that the common elements of the condominium are maintained, repaired and replaced under Section 718.113(1) of the Florida Condominium Act. In most every instance, they are also responsible for the structural portions of the individual units. This typically includes, at a minimum, the exterior, such as the outside walls and surfaces, the balcony and floor slabs, and the roof. Now, with limited exceptions, boards of condominium associations governing buildings three stories or more in height have a statutory duty to carry out repairs identified in any milestone inspection report and an obligation to fund structural integrity reserves for deferred maintenance and replacement projects. Adding to these pressures is that many insurance companies and lenders are also requesting access to these reports and are wanting assurances that the work is being performed. They are evaluating their risk exposure and if they need to adjust rates or place the condominium on a “blacklist” due to maintenance or funding concerns. The bottom line is that there are enhanced obligations of condominium associations for maintenance and restoration, and boards cannot fail to act, or they risk breach of fiduciary duty claims and subject themselves to potential personal liability.
Boards will work with professionals to bid out the work. However, before requests for bids go out and after they come in, boards and those who are tasked with managing associations will face a host of secondary or related issues. Are there material alteration considerations that need to be addressed in connection with the project? What if the association’s project entails the removal of exterior improvements installed by owners or requires the invasion of the interior of the units? Does the association have to replace the exterior improvements or pay for unavoidable damage to the unit’s interior? What about hurricane shutter removal? How does an association obtain access to make repairs? The answers to these questions will vary, and boards and those who manage associations need to be informed to determine the best approaches for the particular situation at hand.
Material Alterations or Substantial Additions to the Common Elements
Addressing potential material alterations or substantial additions to the common elements that may be involved with the work to be performed is an issue that should be evaluated at the outset of the project, as these will often require some kind of unit owner approval. What is a “material alteration or substantial addition”? As set out in the seminal case of Sterling Village Condo., Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971), a material alteration “means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance”. But even with this definition, associations should consult competent legal counsel about whether something is a material alteration, as the case law varies on what is and what is not a material alteration. The need for legal counsel is even more important since there are certain case law exceptions to the material alteration vote requirements, some of which apply when the work is actually necessary maintenance, and not an alteration or addition, or when the association may be entitled to take advantage of new technology that enhances the performance or durability of a product or a component of the building.
Exterior Improvements Installed by Unit Owners
In many instances, a condominium association’s engineer or architect will recommend or require the removal of unit owner improvements, such as balcony tile or other items installed on the exterior of the building, in order to assure proper restoration techniques and protocols and to ensure a warranty for the work can be provided once the project is completed. The association’s professional will often not recommend these exterior improvements be reinstalled or replaced due to the potential for them to facilitate, exacerbate and/or conceal deterioration of the structure. However, many owners find being told that their improvement is going to be removed and not reinstalled to be a difficult pill to swallow. In the event this may apply in a given situation, it is best to have the association’s professional provide a written report reflecting both the need for the removal and any recommendation that the improvement not be replaced, which report can be shared with the owners.
Obtaining such a report is particularly important because a condominium association is typically not responsible for reinstalling or replacing exterior improvements made by owners under the rationale of the cases determined by the Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares and Mobile Homes. The rationale is that owners installed these improvements at their own risk knowing that the association had the ultimate obligation to maintain and repair the exterior of the condominium, which could result in owners’ improvements being damaged or removed during the course of maintenance or repair work. Finally, if the board, based on the advice of professionals, is not going to allow certain exterior improvements to be reinstalled or replaced after removal, it should adopt new rules prohibiting reinstallation or replacement at a properly noticed meeting.
Hurricane Shutters
There is a caveat when it comes to exterior improvements made by unit owners; hurricane shutters. In 2024, the Florida Legislature addressed the issue of what happens when shutters need to be removed for necessary maintenance, repairs and replacements by the association. The newly adopted law is not a model of clarity and contains what many association law practitioners view as internal inconsistencies. However, the short version is that, contrary to prior practice, the newly adopted law provides that if the owner installed shutters that are later required to be removed for the maintenance, repair, or replacement of condominium property for which the association is responsible, then the owner is not responsible for the costs of removal and reinstallation by the association. As with many newly adopted laws, there are often technical glitches that are addressed in subsequent years and that is expected here. But what happens if shutters are removed and they cannot be reinstalled because, for example, they are no longer code compliant? What does seem certain is that the association cannot reinstall them, and the association is not required to replace them. Associations will need to consult with legal counsel as these questions come up, and doing so at the earliest possible time is recommended.
Incidental (or Unavoidable) Damage to Interior of Unit
Things may be completely different when it comes to interior portions of a unit that are damaged by the maintenance and repairs of the association. When the interior of a unit will be damaged in connection with maintenance and repair work that must be performed by an association, it is known as “incidental damage”. This is not damage caused by anyone’s negligence, it is damage that cannot be avoided due to the nature of the work. Most times this arises in the context of concrete restoration, when the interior of a unit must be accessed for full restoration of the floor slab. One of the most overlooked, and consequential, issues is whether the declaration for the condominium contains a provision requiring the association to “repair incidental damage to the unit”. If it does, the association will likely need to address and pay for certain unavoidable damage to a unit’s interior, such as interior floor coverings, cabinets or drywall. If it does not, the unit owner is likely going to be responsible for the repairs. It is not uncommon for associations to speak with legal counsel about amending their declarations’ incidental damages provisions ahead of undertaking concrete restoration projects.
Access to Units
Under Section 718.111(5) of the Florida Condominium Act, an association has the irrevocable right to access units during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit. This association right cannot be conditioned or limited by a unit owner and a unit owner can be required to provide the association with a key or passcode to the unit to effect its statutory right of access. Associations should keep in mind that access to the unit must be necessary under the circumstances. Associations should also prepare for owner objections by ensuring that it has professional reports substantiating the need for access. It is customary and recommended to provide unit owners with advance notice of the need for access to avoid jeopardizing the safety of association board members, personnel and vendors.
Inconvenience Factor
Even if a declaration of condominium requires the association to repair incidental damage, this does not mean owners are not responsible for preparing their units for the association’s project, including removing window treatments, relocating furniture and taking fragile artwork or mirrors off of their walls. Damage to these kinds of items would be avoidable if the owner had properly prepared his or her unit and personal items for the work. Of course, associations should communicate with the owners directing them to make appropriate preparations for the project. This includes notifying owners of the expected commencement of the project, how long they may be impacted, if exterior improvements installed by owners will need to be removed, if portions of the property will be closed, along with providing recommendations related to how one is directed to prepare the interior the unit. And, yes, certain work that needs to be performed by an association, such as concrete restoration, is inherently messy and noisy and may require access to units. This does not mean that owners are entitled to relocation expenses in most cases. If owners desire to temporarily relocate for the duration of a project, they will be required to do so on their own dime most of the time.
Conclusion
While many associations may feel like they have reached the finish line having received their milestone inspection reports and SIRS studies before the end of 2024, the issues they are facing in carrying out the maintenance and restoration work shows this is only the beginning. Of course, the facts and circumstances surrounding all of these issues need to be carefully examined on a case-by-case basis. However, association boards and managers will need to take the time to understand the issues that are unique to the association to ensure that work goes forward as smoothly as possible. These issues are manageable with proactive practices, consulting the right professionals, and regular communication, all of which will reduce the number of disgruntled owners and limit the potential for legal challenges.
To read the original FLCAJ article, please click here.
Allison L. Hertz is a shareholder in the West Palm Beach office of Becker. Ms. Hertz is board certified by the Florida Bar in condominium and planned development law. She is a graduate of the Nova Southeastern University Shepard Broad Law Center, and Ms. Hertz has exclusively represented community associations and individual property since being admitted to the Florida Bar in 2007. Hertz devotes her practice to working with her client on the broad range of legal issues that community associations face on a regular basis. She has extensive experience in all aspects of community association law.
