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Attorneys at Goede, Adamczyk, DeBoest & Cross respond to questions about Florida community association law. With offices in Naples, Fort Myers, Coral Gables and Boca Raton, 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 unit owner above me recently replaced his water heater.  The water heater leaked and flooded his unit while he was out of town and the water flowed down into my unit. I understand that my insurance covers my personal property, but the association is refusing to fix the interior drywall and my insurance company is also refusing.  Who is responsible? H.H.,   Marco Island

A:  The likely answer is the condominium association, but that answer is only half complete depending on some other factors.

The very general rule under the Florida Condominium Act is that the condominium association repairs and replaces property insured by the association when the property is damaged by an insurable event.  For purposes of this answer, we will assume the hot water heater leak was a sudden and insurable event.  The association insures all drywall as originally constructed by the developer and like kind replacements.  If the analysis stopped here, the condominium association would be responsible to repair the drywall and you would be responsible for the paint or wall coverings and the parties often reach an agreement on how to share in any remediation services which benefit both the drywall and the interior of the unit.

There are a few exceptions to this rule.  First, the association only insures drywall as originally installed or like kind replacement.  If you moved walls or performed interior alterations to the unit's configuration, it is possible the association is not required to insure the drywall.

Second, the statute does authorize the condominium association to opt out of the above general rule.  If the association did opt out of the statutory requirements, then liability for interior drywall is controlled by the express language of your Declaration of Condominium.  Many declarations specifically provide that the condominium association replaces boundary drywall, but the owner replaces interior drywall and sometimes the obligation further depends on whether the drywall is part of a load bearing wall.

Finally, it is possible the above owner was negligent.  If your condominium requires owners to shut the water off during an extended leave from the unit, it is possible the owner broke that rule by leaving town without shutting off the water and this breach may have augmented your damages.

Many owners and board members assume that the responsibility to repair the condominium property following water damage is straightforward, but there are many factors contributing to the analysis.  For example, if the water leak is caused by a non-insurable event, the analysis follows the opt-out analysis above, but it can be very cumbersome to determine whether an event is actually an insurable event.  Because of this, the recommendation is to consult with your attorney to determine the extent of liability, if any.

Q:  I live in a condominium association and our community website is terrible.  There are no minutes, contracts or financial records to view and the board doesn't email any updates to the community.  During the summer months, I have no way of knowing what is going on and was told the board must have a website.  Is the board violating Florida law? T.R., Naples

A:  Possibly, but I would need more information to answer the question.  Florida law now requires condominiums with 150 or more units to maintain a website.  Thus, condominiums with fewer than 150 units are not required under today's law to maintain a website at all let alone a website with updated information.  So, if your condominium includes less than 150 units, the board is not violating the statute.

If the condominium has 150 or more units, the statute then prescribes a number of requirements.  First, the website must be independent and wholly owned and operated by the board or a website operated by a third party but in the association's control.  Second, the website must include an owner's only section that is protected and inaccessible by the general public.  The association must also post current copies of various documents in digital format on the website and protected in the owners only section of the website.  Some of these documents include the condominium documents, a list of contracts and summary of recent bids, the annual budget, notices, financial reports, and contracts involving a director who is financially interested in the contract. 

Q:  Our homeowners association (HOA) includes a beautiful clubhouse with a great recreation room and fitness center.  I work until 8:00 and used to work out in the fitness center after work.  I went to the fitness center yesterday and it was closed citing a new rule adopted by the board.   I had no idea this was happening, and the board is refusing to reinstate the old hours.  What can be done? J.G., Bonita Springs

A:  Probably not much.  Florida law concerning rules in HOAs are generally broken down into two categories: 1) rules concerning what can be done on the owners' lots; and 2) everything else authorized by the governing documents.  If the board was considering a rule concerning what you can do on your lot such as rules concerning paint colors or fence heights, then the board must provide at least 14 days' mailed and posted notice of the board meeting where that rule would be considered.  In this situation, you would have known the board was considering such a rule. 

That being said, rules governing the common areas such as clubhouse hours, are only required to be adopted by the board after 48 hours' posted notice.  Thus, unless you checked the bulletin board or unless the board emailed you a notice of the meeting, you may not have known this rule was being considered.  Clubhouse hours generally fall within the board's discretionary authority, so to change the hours you are going to need to convince the board to change the hours.

There are other factors that are relevant to the above analysis, so I would recommend you consult a licensed Florida attorney to review the governing documents to determine the extent of the board's rule-making authority and whether your community covenants require notice and due process above and beyond the statutory requirements.

Attorney Steven J. Adamczyk is a shareholder at the law firm of Goede, Adamczyk, DeBoest & Cross. Visit the website at www.gadclaw.com or ask questions about your issues for future columns by sending an inquiry to: info@gadclaw.com.

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