HOA: Who's Responsible for Damage from Vacant Condos
By:Rchard D Deboest, SPecial to TCPalm - February 5, 2019
Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC., respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Q: The board of my community association held a meeting at 2 p.m. during the week when most of the owners were at work and could not attend. I always thought a board meeting had to be in the evening when most of the community is at their homes after work and can attend.
—M.W., Vero Beach
A: The condominium act (Chapter 718 Florida Statutes), the cooperative act (Chapter 719 Florida Statutes) and the homeowners association act (Chapter 720 Florida Statutes) do not dictate what time or what day a board meeting must be held. Thus, while the board should consider the schedules of the members there is no obligation to do so. Moreover, no matter what time a board meeting is held there will be some owners that cannot attend due to scheduling issues. There is no way to accommodate all owners in regard to scheduling.
Q: My wife and I own, by separate deeds, two condominium units in a 12 unit complex. Can we both be on the Board of Directors at the same time?
—T.C., Jensen Beach
A: Yes. The condominium act (chapter 718 Florida Statutes) prohibits co-owners of a single unit from serving on the board at the same time unless there is no one else willing to serve. However, as you and your wife each own a separate unit this prohibition would not apply. Thus, while you may both serve on the board at the same time in this case it could prove problematic. Assuming your board consists of 3 directors that means 2 directors constitutes a quorum of the board. A quorum of the board cannot meet and discuss association business without noticing a meeting 48 hours in advance. Therefore, you and your wife would not be able to discuss association matters when you are together, or you would be holding an illegal board meeting unless you posted notice in advance.
Q: When we were not in residence a pipe under the concrete slab in our first floor condominium unit needed repair. This pipe supplies water to our unit and to the one adjacent to ours serving a total of 24 units. Approximately two inches of water was found in our unit. Plumbing and concrete contractors were called in by our management company and repairs were made. Jack hammering the concrete, removing 3-4 feet of sand, finding and fixing the pipe leaks in multiple places, returning the sand, and sealing the slab with new concrete were all required. New baseboard molding was installed and painted, and a small piece of drywall was installed where necessary. These services were paid for by our condo association. A "dry-out" company was hired by our management company to remove water and deal with wet carpeting and wet floors so that the above mentioned repairs could be done. Fans and a dehumidifier were installed and remained for 5 days.
Now, here lies our problem. This incident occurred in June and we have just this past week received a bill from our management company for "dry-out" services in the amount of $5,700. We have been told that this payment is our responsibility and NOT the condo association's. Back in June we filed a claim with our home owner's insurance company and have already accepted payment and have had new carpeting and flooring installed. We do not understand how some of the repairs are the condo association's responsibility, but others are not. Your input would be greatly appreciated.
A: It is a matter of negligence. The Association has an obligation to maintain, repair and replace pipes that serve the units and the common elements. If the Association had no reason to believe the pipe under your unit was going to break and cause water damage, then the Association was not negligent in failing to maintain the pipe. As such the water break and resulting flood was the result of an unforeseeable accident. In such cases the Association must make the repair and pay for the items that the Association insures for accidents (called an insurable loss or casualty). The Association’s casualty insurance does not cover personal items in your unit or carpeting. So, when the accident occurred you are responsible for the items that the Association does not insure such as drying out your carpet and personal items. That is what your homeowners insurance policy covers. Alternatively, if the Association knew or should have known that the pipe was about to break and cause damage and did not take timely action to prevent it then the Association could be deemed negligent and while you would still have to pay for your share of the dry-out costs you might be able to recover the cost from the Association.
Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Visit www.gadclaw.com for past columns or to ask questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. The information provided herein is for informational purposes only and should not be construed as legal advice.
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