Association Duty to Prevent Excessive Moisture Damage

by Michael Gelfand, Esq. / Published December 2015

What happens when intruding water starts causing damage to property? Does the association have a duty to prevent water from intruding in the property? What if the owner’s plumbing and air conditioning are not the cause of the water intrusion? What if the “intrusion” is not a “flood” of biblical proportions? While there are many questions, if the association has a duty to repair the property’s exterior, and especially if the association is a condominium association, the answer likely will be yes.

Recently, a Florida appellate court ruled that a unit owner may be able to force a condominium association to take action to prevent water intrusion in a unit. In Amelio v. Marilyn Pines Unit II Condominium Association, Inc., 40 Fla. L. Weekly D 1612 (Fla. 2nd DCA, July 15, 2015), the court laid out a chronology that appeared to be damning to the association. A shortened version is stated as a lesson to association directors and managers:

• December 2010: The unit owners notified the association that excessive moisture was causing damage to the unit and the unit’s contents. The association’s testing determined that excessive moisture in the slab was not caused by a plumbing, air conditioning, or other leak.
• March 2011: The association’s engineering firm recommended installing a moisture barrier and exterior drainage system.
• March/April 2011: The association’s attorney wrote to the board of directors identifying the association’s duty to fix the slab.
• December 2011: The association hired a new engineering firm to design an exterior 
• drainage system, which apparently did not include a moisture barrier.
• Early 2013: The drainage system was completed, but high moisture levels remained in the slab and moisture intrusion continued in the unit.
• April 2013: The association rehired the original engineering firm, which recommended a moisture barrier, which was installed, but not installed pursuant to the original engineer’s specifications.

Continued water intrusion led the owners to sue the association. The owners sought an injunction to require the association to resolve the moisture problem, and also sought money to compensate for losses. The trial court denied the request for an injunction, finding that the owners failed to prove that money could not reimburse for all losses.

The Florida appellate court disagreed with the trial court’s finding, and concluded that an injunction was appropriate in this case. The appellate court explained that Florida’s Condominium Act authorizes injunctions in cases brought by unit owners against associations when an association fails to perform obligations required by the Declaration of Condominium. Reviewing the Declaration, the court pointed out that Section 5.2(a) provides that the association “shall maintain, repair and replace…floors and ceilings slabs.” Although the owners had the duty to maintain the interior surfaces of the unit, the owners were not entitled to make any changes to the slab.

“Because the evidence has shown that moisture was coming from outside the Amelios’ unit through the floor slab and that the association has failed to resolve the problem, the Amelios have established that they possess a clear legal right to have the association repair the slab,” the court stated. “The Amelios have no ability to remedy this problem as they have no unilateral right under the declaration of condominium to maintain, repair, or replace the

floor slab. Rather, the right and obligation to address slab problems is that of the association.”

It is important for Florida associations, condominium and homeowners, to know their physical and legal boundaries. Often, “condominium documents” have conflicting definitions in different sections. Although this case involved a condominium unit, similar issues may apply to a homeowners association. Further, just as an association can seek an injunction to force an owner to follow restrictions, a unit owner can seek an injunction to force an association to follow restrictions. Contact your association’s attorney when in doubt.

Michael J. Gelfand, Esq.

Senior Partner of Gelfand & Arpe, P.A.

Michael J. Gelfand, the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and how to effectively achieve those goals. Gelfand is a Florida Bar Board Certified Real Estate Lawyer, Certified Circuit and County Civil Court Mediator, Homeowners’ Association Mediator, an Arbitrator, and Parliamentarian. He is the Director of the Real Property Division of The Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at Michael@flcaj.com or (561) 655-6224.

Insurance: Court Rejects Owner’s “Greedy” Claim

When is enough, enough? In State Farm Florida Insurance Company v. Hernandez, 40 Fla. L. Weekly D 1433 (Fla. 3rd DCA, June 17, 2015), a decision that can apply to Florida association insurance claims, a Florida appellate court ruled that a trial court erred in compelling appraisal of
a claim because the homeowner failed to comply with his contractual post-loss notice obligations. Within one month of Hurricane Wilma in October 2005, State Farm paid the homeowner $36,858.80, which included money for a full roof replacement. Allegedly based on additional damages, the homeowner renovated his entire home in 2007.

After seeing a television advertisement in 2010, the homeowner contacted a public insurance adjuster to appraise the damages. Five years after his initial claim was paid, the homeowner filed a supplemental claim for $201,038.84, which included money to replace the roof. By 2011, the homeowner reduced his claim to $65,000.

After State Farm paid the homeowner $1,300, the homeowner sued State Farm for breach of contract. Although State Farm argued that the homeowner failed to comply with his post-loss obligations as specified in the insurance policy, such as timely notice, the trial court granted the homeowner’s motion to compel appraisal.

The Florida appellate court reversed the trial court’s order. The court noted that the law in Florida is clear: The party seeking appraisal “must comply with all post-loss obligations” before he or she is entitled to invoke the right to appraisal. The court pointed out that the homeowner did not provide immediate notice or keep records of the claimed supplemental loss; did not notify State Farm within 60 days after his repairs were completed; and did not provide sufficient documentation of the damages and repairs. The court concluded that State Farm was denied the opportunity to determine if the losses were real or based on the homeowner’s desire to renovate his home!

Remember, that during hurricane season, if the worst does happen, and you are forced to file a claim, take note of the requirements set forth in your association’s policy, taking special care to comply with timely notice and documentation requirements.