In our last article about water leaks we reviewed exactly who (owner and association) is responsible for what portions of the overall structure, as defined by statute. (See December 1, 2009 APM News Express). In this article we will review variations of this, as negligence, maintenance, insurance coverage and insurance deductibles all play a part in what happens after a water leak.
Despite the cause and the liability, Florida Statute 718 requires that the association obtain insurance and be responsible for the structure, any alterations and improvements, as defined by Chapter 718.111(11)(f)(n). The unit owner will be responsible for anything within their unit, as defined by the Chapter 718.113(2) and (3).
Where this issue seems to get tricky is when owners have a water leak problem between themselves. The issue here is not who repairs what (that is defined by statute), but rather who is responsible to pay for the repairs. Was the leak a casualty occurrence (an unexpected event)? Was the leak a matter of the owner’s negligence (he knew about the leak and failed to correct or maintain)? These are issues for owners, attorneys and insurance companies to determine. If the occurrence was a casualty (unexpected event) the insurance casualty portion of the insurance of all parties (owner, fellow owner, association) will cover each casualty. The deductible amount of each policy is the owner’s responsibility separately, with the association’s portion a common expense. If owners do not have insurance, then it is totally out of pocket. If the association has a high deductible (as most do nowadays) this repair then becomes a common expense (part of the association’s budget or from the association’s savings or reserves).
If this event was caused by negligence (and can be proven), the same parties still are required to make repairs to the damaged portions of their respective units and common areas, but now the cost of the repair will be borne by the party causing the leak. The parties can have this matter and loss resolved through their respective insurance companies, privately or by the courts. In the case of the association being negligent, the association will make the repairs and the overall costs to the unit owner will be the association’s responsibility.
In some cases, depending on the situation, the insurance company will cover and pay for the losses and will look to the party who was negligent for reimbursement of the costs.
As you can see, for a layman, this is not an easy subject to tackle. For years we have required a uniform statute that defines this issue more clearly and is understandable for all concerned. I urge you to contact your state representatives to have this portion of the statute updated and made clear for all.
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