Given the especially active and devastating 2018 hurricane season, it is helpful to remember how condominium associations should proceed with repairs to the condominium property after a hurricane or other storm event. The first determination that must be made is whether the association will need to look towards its Declaration of Condominium or to the Florida Condominium Act in order to decide who is responsible for making what repairs. Thus, the first question is what caused the damage and whether that cause would be deemed a casualty, or insurable, event. If the cause of the damage to the Unit is due to casualty event and is covered by the Association’s property insurance policy, then §718.111(11), Florida Statutes, concerning post-casualty repair would determine who is responsible for the repairs. On the other hand, if the cause was not due to a casualty event, the maintenance and repair provisions within the Declaration would control. An association can also obtain membership approval to opt out of the insurance and repair requirements of §718.111(11). If such opt-out vote is successful, then the provisions of the association’s Declaration of Condominium would control.
What is a casualty or insurable event? “Casualty” is defined as “something out of the usual course of events, and which happens suddenly and unexpectedly and without design of the person injured.” Shelby Mutual Insurance Company of Shelby, Ohio v. Ferber Sheet Metal Works, Inc., 156 So. 2d 748 (Fla. 1st DCA 1963). “Casualty” is also sometimes described as an event due to some sudden, unexpected or unusual cause and does not include progressive decay or corrosion occasioned without any unusual action by the elements. 41 A.L.R. 2d 691. Clearly, a hurricane or storm event would most likely be deemed a casualty event. Conversely, slow, continuous water leaks are usually not considered a “casualty.” Hoey v. State Farm Florida Ins. Co., 988 So. 2d 99 (Fla. 4th DCA 2008). An association should not assume that simply because there is damage during a hurricane or storm event that such damage was caused by the storm, as it is possible that there may be unrelated non-insurable damage. Accordingly, consultation with the association’s insurance agent and with the association’s legal counsel is crucial during the aftermath of a hurricane or a storm.
As stated above, if the damage was caused by a casualty, or insurable, event, the Florida Condominium Act will govern. A condominium association is required to insure:
1. All portions of the condominium property as originally installed or replacement of like kind and quality, in accordance with the original plans and specifications.
2. All alterations or additions made to the condominium property or association property pursuant to § 718.113(2).
Unit owners are required to insure: all personal property within the unit or limited common elements; floor, wall and ceiling coverings; electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops; 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 which serve only that unit. Unit Owners are also responsible for insuring any upgrades installed by an owner if the upgrade only benefits the unit and is not part of the original construction, regardless of the location of the upgrade.
It is important to determine who insures which portion of the condominium property because the statute provides that the person or entity that insures the property is also the person or entity who repairs that portion of the property. Generally, any portion of the condominium property that must be insured by the association and which is damaged by a casualty or insurable event, will be repaired by the condominium association and the costs of such repair will be assessed as a common expense against all unit owners. Unit owners are responsible for repairing any portions of the condominium property that it is required to insure and the cost of such repairs to be paid by the owner of the unit that suffered the damage.
In conclusion, if your condominium suffers damage due to a hurricane or another storm event, the association will need to consult with its insurance agent and its legal counsel to determine if the damage suffered was due to a casualty, or insurable event, and thereafter decide who will need to repair the damage and pay for the costs of such repair. Prompt action must be taken to protect the condominium property and the association. If your association needs further guidance on this issue, it should consult with its attorney.