By Jacob Epstein / Published September 2020
Every condominium association in Florida has certain responsibilities and powers pursuant to its governing documents and Chapter 718, Florida Statutes. One of the more obvious responsibilities is to provide routine maintenance to the common elements of the condominium, in addition to other potential areas of the property, depending on the association’s governing documents. This maintenance obligation, if ignored or overlooked, could lead to disastrous results. Insufficient maintenance can contribute to and/or exacerbate problematic conditions requiring emergency repairs, such as water intrusion events, elevator malfunctions, and of course, a favorite of all South Florida condominium residents, the failure of air conditioning systems. In order to minimize such events and protect the association’s rights to recover against the companies that may have caused the conditions, it is crucially important that the condominium association perform regular maintenance and keep detailed records to prove it.
Although most of the regular maintenance at condominiums goes largely unnoticed by the residents, the potential effects of failing to provide such maintenance can be wide-ranging. Of course, residents will surely notice and complain when the elevators break down, and they will certainly notice when the air conditioning in the hallways is not working. However, they will likely never notice the regular maintenance that goes into maintaining the HVAC systems (such as chemical treatments and regular servicing), and they likely will never see the regular maintenance that is often required for roofing and waterproofing systems, pools, and other common areas of the property. Failing to provide the proper maintenance to any of these components could lead to a manufacturer voiding a product warranty or could lead to a decrease in the useful life of the system itself. Indeed, an improperly maintained HVAC system could increase the chance of a pipe bursting (as well as a breakdown of the air conditioning itself), causing damage to the common elements or to an individual unit.
Of course, not all emergency incidents like air conditioning failures and/or roof leaks are the fault of the condominium association or its maintenance providers. Such incidents can be caused by improper construction and/or improper design of the building itself. In such situations, no matter how much maintenance is performed, and regardless of whether any product warranties remain in effect, there might be nothing the association can do to fix the condition without a complete replacement of the subject component altogether. In such a scenario, the association’s only option might be to provide the statutorily required notice under Chapter 558, Florida Statutes, to the company that designed and/or constructed the subject component, provide them with an opportunity to perform the repair, and if they do not take that opportunity within the specified amount of time (which depends on the size of the association), then the association may have to file a construction defect lawsuit in order to force a resolution.
In the unfortunate event that your association has to go down this road, the association’s maintenance procedures will inevitably become an issue. Indeed, in every condominium construction defect lawsuit, there is one defense to the association’s claims that is all but guaranteed: the claim (whether warranted or not) that the association failed to properly maintain the building. There is only one surefire way to anticipate that defense and to get ahead of it: ensure that regular maintenance procedures are in place and maintain documentation memorializing those procedures.
In construction defect lawsuits filed by condominium associations, there are typically two causes of action that are filed: negligence and breach of implied warranties under Chapter 718. With respect to negligence claims, Florida is a “comparative fault” state, which means that during the course of the trial, the defendants will have the opportunity to blame each other and/or the association for the alleged defects and resulting damages. If the defendants can demonstrate any failure by the association to perform the required maintenance, or convince the jury that an alleged lack of maintenance contributed to the defective conditions and resulting damage, it could lead to a jury apportioning a substantial percentage of fault to the association, thereby reducing the overall verdict amount against the defendants.
With respect to breach of implied warranties, Section 718.203, Florida Statutes, provides that developers, contractors, subcontractors, and material suppliers grant to the purchasers of condominiums implied warranties of fitness and merchantability after the construction of the building is complete. However, Section 718.203 also specifically provides that “These warranties are conditioned upon routine maintenance being performed.” Again, if the defendants can convince the jury that such routine maintenance was not performed, the association’s implied warranty claim will likely fail.
With these considerations in mind (and the underlying concept that condominium associations are required to provide routine maintenance according to their governing documents), it is crucially important that condominium associations address any and all doubts regarding the sufficiency of their maintenance procedures before it becomes an issue. Some things to consider are the following: (1) Does your association have regular and documented maintenance procedures in place? (2) Does your association have copies of the product manuals setting forth the required maintenance of various components of the property? (3) Does your association have written agreements with your vendor/maintenance service providers, and if so, have those agreements been reviewed to ensure that sufficient maintenance is required of the vendors? (4) Does the association have procedures requiring that the building’s maintenance staff document in writing the maintenance and/or standard remedial work that is performed? (5) Has a consultant or attorney reviewed your association’s services agreements to ensure that the association is not being shortchanged?
Without knowing what maintenance is required of a particular component of the property, a condominium association cannot guarantee that the proper maintenance is being performed. Although there is always the possibility that the developer may have failed to provide certain documents (like product manuals) to the association at turnover, the maintenance team may be able to locate such documents on the internet for free, which could include product manuals complete with recommended maintenance procedures. Regardless of who is at fault for such missing materials, by not having such information, the association opens itself to potential incidents that could disrupt the lives of the residents and/or cause damage to the common elements and/or to the individual units.
In conclusion, there are many preemptive actions your condominium association can take to ensure that the necessary maintenance is being performed and documented. This due diligence may seem unnecessary, especially with the thousands of other issues on the minds of all condominium boards and management companies in these trying times, but performing that analysis and any corrective measures now will ultimately protect the association down the road.
Jacob A. Epstein
Associate, Haber Law
Jacob A. Epstein is an associate with Haber Law. He concentrates his practice in the areas of business litigation, condominium and community association law, construction law, and real estate litigation. Epstein received his juris doctor from the University of Miami School of Law in 2015, graduating magna cum laude. For more information, email firstname.lastname@example.org or visit haber.law.