At post-Irma Week 6, most communities are back to business as normal, save perhaps figuring out what to do with mountains of landscape debris.
However, some associations are entering a critical period in post-disaster procedures. With the exception of those buildings which sustained catastrophic damage (and fortunately, there were a few), damaged buildings should be shored up, dried in, and dried out. This is sometimes called the “mitigation” or “remediation” phase of the process.
Next is the stage where things can get a little confusing, and disputes often arise. For most homeowners’ associations, it is pretty easy. The association repairs damage to common area and the owner repairs damage to their home (there are, of course, exceptions to this rule based upon the provisions of the governing documents).
Things are a bit more complicated for condominiums. As a result of the 2004-05 hurricanes, the Florida Legislature amended the Florida Condominium Act (Chapter 718 of the Florida Statutes) to impose a “one size fits all” program for insuring condominium buildings. The law states that it applies to all condominiums regardless of when created, and regardless of any contrary provisions in a declaration of condominium. Some argue that the imposition of uniform insurance requirements could be unconstitutional for pre-2008 condominiums whose declarations do not incorporate future amendments to the statute, and where the declaration allocates insurance responsibilities differently. As a general matter, and with a few exceptions, I don’t buy that argument.
The association insures all of the original improvements to the real property installed by the developer, except 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, which are located within the boundaries of the unit and serve only such unit. The association’s insurance responsibility includes items like air conditioning equipment and interior drywall, which are usually the maintenance and repair responsibility of the unit owner. It is important to remember that the responsibility to insure (set by statute) is different than the obligation to maintain and repair (set by the condominium documents, with some requirements of statute involved).
To add another twist, the 2008 legislation also imposed uniform requirements for fixing damage from hurricanes and other insurable events, often called “repair after casualty.” The law provides that the party that insures an element is the party to repair or replace it after hurricane damage, and the association must assess all unit owners for the expense not covered by insurance, including shortfalls arising from deductibles.
That part of the law also conflicts with many condominium documents, and there is similarly a constitutional issue, which may have more merit than the insurance question. I am a proponent of certainty for condominium associations when navigating complicated legal issues, which is why I normally recommend that the condominium documents incorporate future amendments to the statute. However, I am in a distinct minority on that issue with my colleagues at the Bar, since incorporating future amendments to the law means taking the bad with the good.
I have seen disputes over post-hurricane repair efforts still going on five years after a storm, and a few cases that last substantially longer. There are two lessons here. First, if you are dealing with post-hurricane repairs involving components that are seemingly the general maintenance responsibility of the owner, it is wise to “lawyer up” and make sure you are doing it right. You should also learn about the unit owner’s insurance obligations and the issue of “incidental damage,” which arises when the association has to destroy parts of the unit to do its work. For all associations, even those who escaped damage, it would be a good idea to look at the insurance and repair after casualty provisions of your declaration of condominium, have a chat with your attorney, and be prepared as best you can to avoid the avoidable problems the next time a major storm hits, which unfortunately is not a question of if, but when.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to firstname.lastname@example.org. Past editions may be viewed at floridacondohoalawblog.comDisaster RecoveryHurricaneIrma