Leaks are common in condominiums and are a constant headache for associations. Given this, you’d think there would be straightforward and consistent process for handling leaks to ensure that everyone shares the burden of repairing the water damage fairly, and in accordance with the association’s governing documents and the Florida Statutes (Chapter 718.111(11) Insurance). Unfortunately, it’s not that simple and more often than not homeowners, or the association, have to come out of pocket to repair damage caused in whole or in part by another. This blog will examine the division of responsibilities and will recommend strategies the association may use to help protect itself and its homeowners.
Rule of Thumb: When dealing with property maintenance or repair, look to the governing documents to determine who is responsible. When dealing with damage caused by a casualty, look to Florida Statute 718.111(11)(f) to determine who is responsible.
Per Florida Statute 718.111(11)(f), the association is responsible for everything except the following, for which the unit owner is responsible: all personal property within the unit or limited common elements, and 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 such unit.
The legal and insurance community has taken the above to mean that “drywall out” is the responsibility of the Association but “drywall finishes (i.e., texture and paint) in” and “bare floor up” are the homeowner’s responsibility.
Example 1: A Toilet Leak, A Water Heater Leak, A Washing Machine Leak or A Hot Water Heater Leak
A 2nd story homeowner’s toilet has suddenly begun to leak due to a faulty wax ring, causing damage to the homeowner’s unit as well as the ceiling, walls and floors of the unit below. The association’s documents state that repair and replacement of toilets is the homeowner’s responsibility. As such, the homeowner is required to repair or replace the toilet. However, the damage resulting from the leaking toilet is considered a casualty and would fall under the Insurance Statute.
In this example, there are three parties involved: the Association, the homeowner whose toilet caused the leak, and the below homeowner. We will assume for now that there was no negligence on the part of the homeowner with the leaking toilet (i.e., the homeowner didn’t know, or shouldn’t have known, that the toilet was leaking or going to leak). In this scenario, responsibility for damage caused by the leak would be divided as follows:
- The Association will repair the drywall and any damaged studs, insulation or electrical wiring within the walls.
- The homeowners will individually repair the personal property within their units, any damaged flooring, and the finishes on the drywall (e.g., paint, texture or wall paper).
Each party may contact their respective insurance company (condominium homeowner’s are not required to have insurance per the Florida Statutes but they may per the governing documents) to help cover the cost of the repairs.
The condominium statutes are silent regarding who is responsible for the cost of the initial dry out of the unit after water damage (i.e., removing standing water and installing proper fans). Obviously both the homeowner and the association are protecting their property by ensuring that all water is removed, no further damage is caused, and no mold issues develop. A proper dry out can be very costly and it is up to the association and homeowner to decide who will pay for this service. In my experience, it is easiest for the association to pay for the dry out as it moves the repair process along and ensures the association is meeting its fiduciary duty to protect the condominium property (failure to properly dry out a unit could cause deterioration to structural parts of the building). Another option is to split the cost with the homeowner. Further, if the homeowner has insurance, and intends to file a claim, the insurance company will often pay for the cost of the dry out.
Example 2: A Toilet Leak, A Water Heater Leak, A Washing Machine Leak or A Hot Water Heater Leak With Homeowner Negligence, Intentional Conduct or Failure to Comply with Association Rules
According to 718.111(11)(j), if damage to the condominium property is caused by homeowner negligence, intentional conduction or failure to comply with the rules of the association, the homeowner is responsible for repairing ALL portions of the damaged condominium property not covered by insurance proceeds. Further, according to 718.111(11)(g), when a homeowner is determined by the association to meet the criteria listed in paragraph (j), the association may complete the repair work to the condominium property (excluding the personal property of the homeowners) and charge the cost of the work to the homeowner. If the homeowner fails to pay, the association may collect the cost as if it were an assessment (see our blog on Collections Policies for more information). The homeowners that have sustained damage to their personal property (i.e. everything covered under Florida Statute 718.111(11)(f)) have the option to pursue legal action against the negligent homeowner.
So, in our example, let’s say that a plumber told the homeowner previously that the wax ring needed to be replaced in the toilet or a leak may occur but the homeowner chose not to make the repair. Or, let’s say that the wax ring actually began leaking because the homeowner (or homeowner’s guest) attempted to make a repair to the toilet himself and failed to properly reset the wax ring. In these case, the homeowner could be perceived as being negligent and the association may choose to complete a full dry out of the unit as well as make all repairs to the common elements (i.e. drywall out), and charge the homeowner that create the leak for the full cost. This statute gives the association a significant amount of power and the association should be careful as to how they enforce it. Negligence is often a matter of perspective and the burden of proof is on the association. As such, the association should obtain an opinion from legal counsel before deciding if they consider a homeowner negligent or not.
Enforcement Tip: Negligence is a very tricky topic. To avoid the likelihood of a legal battle, the association should build negligence into their rules and regulations whenever possible by creating a clear-cut definition of actions that are considered negligent.
As it relates to leaks due to an unexpected casualty, one such rule would be: “Homeowners MUST turn off the water to their unit if the unit is going to be vacant for more than 48 hours”. Leaving water on when there is no one in the unit that would notice a leak has been considered negligence by Florida courts in the past. Because the Board would adopt this as a rule of the association, Florida Statute 718.111(11)(j) allows the association to charge the homeowner who has not complied with this rule the full cost of repairing damage due to a water leak stemming from their unit. This is a particularly effective rule given that leaks from vacant units are frequent and tend to cause more damage than those from occupied units.
Another rule may be: “Homeowner’s (or their guests) must provide proof of liability insurance prior to completing any repairs or renovations to their units. With this rule in place, if a homeowner caused a leak themselves (which happens frequently) the association will either have the homeowner’s insurance information already and can immediately place a claim, or, if the homeowner failed to provide proof of insurance, the association may charge the homeowner the full cost of repairing the damage to the common elements caused by the leak.
Example 3: Professional plumber causes leak while replacing shower faucet
A 2nd story homeowner hires a plumber to replace the shower faucet. The plumber did not properly seal one of the connections, which began to leak and caused water damage to the ceiling and walls of the unit below. In this scenario, the plumber’s liability insurance would likely cover the cost to repair all damage to the property (including the homeowners’ personal property). However, if the plumber is not insured or refuses to provide his insurance information to the effected parties, the cost of repairs may end up falling to the association and the homeowner who suffered water damage, or their respective insurance companies. The association and/ or effected homeowner could choose to take legal action against the plumber and/ or the homeowner who hired the plumber but this can often be cost-prohibitive, particularly if the damage was not severe. To help reduce the burden on the association and effected homeowners, the association can choose to put specific rules in place relating to maintenance or renovation work completed by a 3rd party vendor.
Enforcement Tip: The association should consider making it a rule that homeowners MUST utilize licensed and insured vendors, and must provide to the association proof of liability insurance for any vendor working within their unit prior to work commencing. As some vendors may be less willing to provide their insurance information after they have caused a leak at a job site, this requirement protects the association and homeowners, as it will allow the association to immediately place a claim for the damage. Further, if the homeowner failed to obtain proof of insurance, Florida Statute 718.111(11)(j) allows the association to charge the homeowner who has not complied with this rule the full cost of repairing damage to the common elements.
Developing proper strategies for preventing and responding to leaks is a complicated topic and should be discussed with the association’s attorney. A “leak action plan” should be established for all representatives to follow. To avoid legal action, consistent and effective response is key. When making changes to the association’s rules and regulations that have the level of impact these “negligence” rules do, it is important that the association communicate to the membership to ensure that homeowners are properly informed of the new rules.
Feel free to reach out with any questions.
P.S. If you are a condominium homeowner who has recently experienced a water leak and you are looking for clarification on your rights and responsibilities, please contact us. Ryan (my husband/ co-blogger) offers legal counsel and practical advice on these issues at a reasonable hourly rate for our readers. There are no retainers required or minimum fees. Send me an email at email@example.com and I will respond promptly with more information and next steps.