Covenant Enforcement

Ceiling May Not be Part of Unit

By Michael J. Gelfand, Esq./ Published Oct 2015

As buildings age and resales create pressure to “modernize,” condominium and homeowners associations see more and more renovations by owners. Most owners and some associations assume what appears to be “inside” is an owner’s property to change as the owner desires without association approval.

What happens if an owner undertakes renovation, such as removing a ceiling, without obtaining approval? Can the association force the owner to replace the ceiling? In Florida, it depends on the documents.

A Florida appellate court recently ruled that whether the removal of drywall from a unit’s ceiling violated a declaration of condominium was a real issue and sent the case back to the trial court, presumably for a trial. In Andrews v. Shipp’s Landing Condominium Association, Inc., 40 Fla. L. Weekly D 1358 (Fla. 2nd DCA, June 10, 2015), an owner of a unit applied for and received permission to renovate portions of the unit. The only specific requirement, which the association had for renovations, was that an owner’s request be in writing. The owner’s written request listed some renovations, but did not include removing drywall from the ceiling.

During the renovations, the owner removed the ceiling drywall to give the property a “loft” feel by exposing concrete ceiling beams. After a neighbor complained to the association, the association ordered the owner to replace the drywall on the ceiling. The owner sued the association seeking a judge to declare what were the owner’s and the association’s rights.

The association argued that the owner violated the Declaration of Condominium either because: (1) The drywall was outside the boundaries of the unit and therefore its removal was a material
alteration of a common element without written permission; or, (2) its removal was a material alteration of the unit without written permission. In opposing the association’s motion for summary judgment, the owner filed affidavits of an engineer, who was a certified building inspector, and a surveyor, both of whom opined that the drywall was within the unit’s boundaries. Apparently disregarding the engineer inspector and surveyor, the trial court granted judgment for the association and ordered the owner to restore the drywall on the ceiling.

The Florida appellate court reversed the trial court’s decision,
concluding that the association failed to introduce any evidence showing that the removal of the drywall violated the Declaration. The association did not prove that the drywall was a limited common element — that is, the association did not show that the drywall ceiling was outside the boundaries of the unit. Apparently, the Declaration text did not clearly state that the ceiling was outside the unit.

This decision shows the importance for a Florida association to know what unit and common element boundaries are before chasing an owner for violating the Declaration while making renovations. Determining boundaries, especially for maintenance and alteration rights, is a complex effort requiring evaluations of not just one paragraph, but cross-referencing multiple provisions, which sometimes appear contradictory, and then referencing case law, which frequently leads to a different conclusion than what may
be assumed.

Florida homeowners associations have many of the same issues as condominiums, especially if the homeowners association is responsible to maintain or repair any portion of an owner’s lot. Just because it is not a condominium does not mean that boundaries are not important!

So, the proverbial “moral to the story” is that before an association demands that an owner restore their property, if the demand is based on the claim the change was outside the property, make certain the alteration was in fact made outside the boundaries of the property. If you have any questions, contact your association’s counsel.

Insurance: Will Your Insurer Defend You if You Have an Indemnification Agreement?

Have you ever heard the phrase “You can never have enough insurance?” Apparently, there are times when that may be true. Even when you have an insurance policy, it may not cover all claims.

A recent Florida appellate court ruled that an insurer had no duty to defend or provide coverage to a contractor who was required to indemnify the owner for all damages arising from the use of a crane.
In Mid-Continent Casualty Company v. Royal Crane, LLC, 40 Fla. L. Weekly D 1371 (Fla. 4th DCA, June 10, 2015),

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.

a worker was injured on a construction project when a truss fell from a crane. The contractor leased the crane and the crane operator from Royal Crane. The rental agreement contained a clause, which provided that the contractor would indemnify Royal Crane for any claims for bodily injury.

The injured worker sued Royal Crane, which then filed a lawsuit against the contractor for indemnification seeking the contractor to defend Royal Crane as provided under the rental agreement. The contractor requested that its insurer provide a defense under its commercial general liability insurance policy. The insurer refused, claiming it had no duty to defend the contractor.

Royal Crane sued the insurer for breach of contract for failing to defend the contractor. The trial court granted judgment for Royal Crane, ruling that the insurer had a duty to defend the contractor.

The Florida appellate court disagreed, holding that judgment should be entered for the insurer. The court ruled that the insurer had no duty to defend the contractor because the rental agreement was not an “insured contract” within the meaning of the insurance policy. This meant that under the policy terms unless the insureds caused some part of the claimed injury, there is no coverage.

So what is an association to do when it hires a contractor? Requiring a bond from a contractor may only impact the work being performed. In Florida, it now appears that just having an indemnification agreement may not trigger the real source of funds, an insurance policy. The best way for an association to start to protect itself is to hire responsible companies. In other words, make certain you do your due diligence before hiring contractors. Of course, do not ignore the need to have carefully drafted contract insurance provisions, including providing for workers’ compensation coverage!