The unit owner above me recently replaced his water heater. The water heater leaked and flooded his unit while the owner was out of town and the water flowed down into my unit. I understand that my insurance covers my personal property, but the Association is refusing to fix the interior drywall and my insurance company is also refusing. Who is responsible? – H.H., Marco Island
The likely answer is the condominium association, but that answer is only half complete depending on some other factors.
The very general rule under the Florida Condominium Act is that the condominium association repairs and replaces property insured by the association when the property is damaged by an insurable event. For purposes of this answer, we will assume the hot water heater leak was a sudden and insurable event. The association insures all drywall as originally constructed by the developer and like kind replacements. If the analysis stopped here, the condominium association would be responsible to repair the drywall and you would be responsible for the paint or wall coverings and the parties often reach an agreement on how to share in any remediation services which benefit both the drywall and the interior of the unit.
There are a few exceptions to this rule. First, the association only insures drywall as originally installed or like kind replacement. If you moved walls or performed interior alterations to the unit’s configuration, it is possible the association is not required to insure the drywall.
Second, the statute does authorize the condominium association to “opt out” of the above general rule. If the association did opt out of the statutory requirements, then liability for interior drywall is controlled by the express language of your declaration of condominium. Many declarations specifically provide that the condominium association replaces boundary drywall, but the owner replaces interior drywall and sometimes the obligation further depends on whether the drywall is part of a load bearing wall.
Finally, it is possible the above owner was negligent. If your condominium requires owners to shut the water off during an extended leave from the unit, it is possible the owner broke that rule by leaving town without shutting off the water and this breach may have augmented your damages.
Many owners and Board members assume that the responsibility to repair the condominium property following water damage is straight forward, but there are many factors contributing to the analysis. For example, if the water leak is caused by a non-insurable event, the analysis follows the opt-out analysis above, but it can be very cumbersome to determine whether an event is actually an insurable event. Because of this, the recommendation is to consult with your attorney to determine the extent of liability, if any.
Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, DeBoest & Cross, PLLC. To ask Mr. Adamczyk questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.