As a Florida Condo Lawyer with offices near Miami, South Beach, Sunny Isles, Aventura and Fort Lauderdale, I get hundreds of calls from condo owners that have suffered some type of damage due to toxic mold and water intrusion from the condominium common elements like the roof and plumbing as well as damage from other units. Most people think that the Condominium Association Insurance will cover all of their damage. While it is true that Florida Condominium Associations are responsible for maintaining the common elements and are required to provide insurance for the building, most Condominium Insurance Policies have mold exclusions or have very limited coverage for damage due to mold. In addition, most people don’t know that Florida Condominium Owners are required to have insurance on their own units. Section 718.111 of the Florida Condominium Act sets forth the insurance requirements for Condominium Association and for the Individual Condo Owners. Typically the Association is responsible from the drywall out and the individual unit owner is responsible from the paint inward. That means, if a common pipe bursts without any warning and all of your furniture and personal property gets damaged, you won’t be able to recover unless you have insurance on your condominium unit or unless you can prove negligence on the part of the condominium association or some other party. The standard insurance policy that individuals usually obtain for their condominium unit is what is called an “HO6” Policy. This policy provides coverage for the Dwelling and for the Personal Property or contents of the unit. The difference between the two coverages is best explained by the following: imagine if you could turn your condominium unit upside down… everything that does not fall downward would be considered part of the Dwelling and everything else would be considered Personal Property. Some individual Condominium Insurance Policies also provide coverage for Mold and for Loss of Use. If the water or mold damage is so severe that the unit is not livable then the Loss of Use portion can provide benefits for you to obtain temporary housing somewhere else. The Mold coverage is usually significantly less than the coverage for the Dwelling or even the Personal Property. Many Insurance Adjusters dealing with condo owners will try and take advantage of this and blame the entire loss on the mold and thereby attempt to limit the amount they ultimately pay out to their own insureds.
In cases where the Condominium Association’s Insurance Carrier is involved, they typically send out Inspectors and other Experts to go in and view the damage. In past experiences we have seen these Inspectors hired by Association Insurance intent on looking to blame the cause of the water intrusion or mold damage on something that the Unit Owner is responsible for maintaining; like the Air Conditioning or the Windows. Moreover, these Inspectors rarely share their findings with the Unit Owners. Therefore, it is important for Unit Owners to hire their own experts to go in and assess the damage and obtain the evidence necessary to confirm that the cause of the water intrusion was due to a failure to maintain the common elements by the Association.
An experienced Florida Condo Attorney that represents the individual Condo Owners will know what experts to bring in to prove the loss is due to a failure to maintain the common elements. In addition, he will know the arguments to make to show that the original cause of the loss was due to water intrusion and will argue in favor of the greater coverages for the dwelling and personal property. The Law Offices of Herb M. Milgrim, P.A., is one of the only Florida Condo Law Firms that does not represent the Associations. We will guide you through the process step by step and coordinate with the various experts and inspectors to make sure that your interests are protected.
We represent individual unit owners (Condo Owners, Homeowners and Cooperative Owners) that have disputes or are contemplating Litigation or a Lawsuit against their Association or another owner. We provide prospective clients with a *Free Case Evaluation. You can call us and tell us about your case to see if we can help you. Once we have been retained we review all of the relevant documents and governing Florida Laws and advise our clients on the best course of action. Call us now (954) 966-3909! If you have water or mold damage in your condominium, townhouse or cooperative in Hollywood, Hallandale Beach, Sunny Isles, Downtown Miami, South Beach, Aventura, Davie, Dania Beach, Cooper City, Pembroke Pines, Tamarac, Coral Springs, Boca Raton, Delray Beach, Naples or anywhere in Florida be sure to contact us for a free case evaluation.
* FREE CASE EVALUATION IS BY TELEPHONE AND DOES NOT INCLUDE LEGAL ADVICE. OFFICE CONSULTS WITH LEGAL ADVICE ARE AVAILABLE ON A FLAT FEE BASIS.
As a Condo Attorney that represents individual Condo Owners in Miami, Fort Lauderdale, West Palm Beach, Naples and many cities throughout Florida, the question I get asked the most is:
Who is responsible for mold contamination and water damage in my condominium?
First, one must identify the source of the water intrusion that caused the damage and ultimately led to the mold growth. More likely than not the water intrusion came from a common element like the roof, common plumbing lines or even from a crack in an outer wall. Another likely source could be from another condo unit, usually from above. This is especially common in South Florida cities like Fort Lauderdale, Aventura, South Beach, Miami and Naples where many of the condo owners live out of state and keep these Florida Condominiums for seasonal use like snowbirds or simply as a good real estate investment. The problem is that most of these units are not being monitored by their owners or the Condo Association. Another problem is moisture driven mold that usually comes from vacant units that are in foreclosure and are not running any type of air conditioning. The heat along with excessive moisture and humidity levels in these vacant units can affect your unit and you may not even know it until you start getting sick.
If the source of the water intrusion is from the Common Elements than the Association is responsible for the cause of the water intrusion. Many Condominium Boards will try and shift the blame for a failed roof repair or faulty plumbing line to the contractor that did the work. Unfortunately, individual condo owners are not aware that the CondoAssociation owes them a Non-Delegable Duty to maintain these Common Elements and they cannot shift the responsibility to a third party in this type of situation. This duty owed by the Association is contractual pursuant to the Declaration of Condominium and Statutory a set forth in the Florida Condominium Act in Section 718. While most individuals read Section 718.111 to require the Individual Condo Owner to insure the Unit from paint in and the Association to insure from the drywall out, there is a considerable amount of confusion as to who is really responsible in the event the water intrusion and/or mold contamination was caused by the failure to maintain a common element. Usually, if the mold or damage came from water that originated outside the unit, most insurance companies writing policies for individuals will deny the claim citing the source of the water intrusion as the reason for the denial. This leaves the individual with no alternative but to look to the Association. Moreover, even if the individual’s carrier does cover the interior damage, the source of the water intrusion, i.e., leaky roof, faulty plumbing, etc., must first be repaired before doing any work to the interior.
In an earlier Article on this topic I cautioned Condo Owners to be careful when hiring companies to inspect and/or assess for mold damage:
Prior to 2011 companies would come in to “assess” for mold and water damage, write up a huge estimate and then solicit you to hire them to do the repairs and mold remediation. This clearly presented a conflict of interests.
The Law now prohibits a mold assessor from also performing the mold remediation work to avoid this inherent conflict of interests. For many of these reasons, water damage and mold contamination cases can be difficult for owners to resolve on their own. Condo Associations have big Law Firms and trained Property Managers advising them on these matters and they use your money to pay for them. If you are tired of dealing with the matter on your own, you should seek out legal advice from an experienced Trial Attorney that represents individual Condo Owners.
The Law Offices of Herb M. Milgrim, P.A., is a Florida Law Firm that represents individual Condo Owners, Homeowners and Cooperative Owners that have disputes or are contemplating Litigation or a Lawsuit against their Association. We provide prospective clients with a *Free Case Evaluation. You can call us and tell us about your case to see if we can help you. Once we have been retained we review all of the relevant documents and governing Florida Laws and advise our clients on the best course of action. Call us now (954) 966-3909!
If you have water or mold damage in your condominium, townhouse or cooperative in Hollywood, Hallandale Beach, Sunny Isles, Downtown Miami, Aventura, Davie, Dania Beach, Cooper City, Pembroke Pines, Tamarac, Coral Springs, Boca Raton, Delray Beach, Naples or anywhere in Florida be sure to contact us for a free case evaluation.
* FREE CASE EVALUATION IS BY TELEPHONE AND DOES NOT INCLUDE LEGAL ADVICE. OFFICE CONSULTS WITH LEGAL ADVICE ARE AVAILABLE ON A FLAT FEE BASIS.
When someone gets injured due to a dangerous condition in the Common Areas of a Condo Association or Homeowner’s Association who is responsible?
Under Florida Statutes Chapter 718 (Condominium Associations) and Chapter 720 (Homeowner Associations), the Association is responsible for maintaining the common elements. The Declaration which is part of the Association’s Governing Documents sets forth the boundaries of an individual’s unit. In addition it usually defines the common elements. While each Association may define the common elements differently, they usually include the following:
Typical Common Elements
condominium or association property not included within the units or homes;
easements of support within a unit that contribute to the support of a building;
easements through units for conduits, ducts, plumbing, wiring, and other facilities for the furnishing of utility services to units; and
the property and installation required for furnishing utilities and other services to more than one unit or to the Association property.
The most common type of personal injury case involving the common elements of an Association usually involves the recreation areas such as the pool or tennis courts or the common walkways, stairs and parking areas. Many of these areas can be neglected or run down resulting in dangerous conditions that could cause somebody to be injured. Associations can also be responsible to victims of criminal assaults and other violent crimes that occur on Association Property if the Association agreed to provide security or voluntarily undertook the task of contracting security personnel for the property.
In order to state a claim against an Association you will need to prove that your injuries were caused by a dangerous or defective condition on or in the common elements and that the Association, by virtue of its Governing Documents or other means agreed to maintain or be responsible for this particular area. The normal common law tort or negligence concepts of notice usually won’t apply in these cases because the liability of the Association is actually predicated upon the Association’s breach of contract or voluntary undertaking.
In the recent case of Vazquez v. Lago Grande Homeowners Association, 900 So.2d 587 (Fla. 3d DCA 2005) the Court held that the Association was responsible for a wrongful death after an ex-husband of a guest gained entry to the property and shot and killed his ex-wife and shot another resident. The Court reasoned that the Condominium association was liable for the death of the visitor and injury of resident, caused by visitor’s ex-husband, based on both the association’s own negligence in retaining the security company despite notice of company’s prior security deficiencies and the association’s vicarious responsibility for the company’s negligence, which arose because of association’s legal inability to delegate non-delegable contractual duties it assumed in its agreements with condominium association members.
Both the Association and the Security Company argued that they had no duty to prevent the shooting in the absence of prior similar crimes at the condominium complex or information suggesting that shooter was a dangerous person. Chief Judge Allan Schwartz went on to note in his rather detailed opinion, that notice of prior offenses was not necessary since the very purpose of what the security company and association agreed to do was to exercise reasonable care to prevent any criminal activity from occurring.
What this means is that regardless of whether someone is shot or killed because of negligent security or slips and falls due to water from a roof leak or trips over a broken paver, the Association can be held responsible and cannot shift the blame to others hired to manage the property or repair the condition. This is based upon the fact that the Association’s duty to maintain and be responsible for the Common Elements is a non-delegable duty.
If you or a loved one have been seriously injured due to a dangerous or defective condition of the common elements of a Condo or Homeowner Association or in another type of accident in Hollywood, Fort Lauderdale, Hallandale Beach, Aventura, Davie, Dania Beach, Cooper City, Sunny Isles, North Miami, Miramar or Pembroke Pines, we will come out to your location personally to meet with you and discuss your case.
If you are not sure if you have a case please contact us now for a Free Case Evaluation. You may be entitled to significant monetary compensation.
In Florida many condo owners and homeowners have problems with their Associations and other owners but aren’t sure if they should hire a lawyer. This post is designed to assist condo owners and homeowners in making that decision.
Florida condo owners and homeowners are routinely faced with many problems related to condominium law, the Florida Condominium Act, HOA issues, disaster recovery, hurricane claims, water and mold damage damage due to association’s failure to maintain common elements, injury claims in common areas, covenant enforcement, illegal budget increases, selective enforcement claims, improper leasing restrictions, tortious interference with owner’s right to sell or rent, pet restrictions, interference with an owner’s quiet use and enjoyment, noise complaints, harassment by board members and property management, architectural review claims, and improper use of funds by board members, just to name a few.
It is important to understand that Condo Associations and Homeowner Associations in Florida keep expensive attorneys on retainer using your maintenance dues. While you may be able to resolve some matters by yourself it is difficult for an individual owner to deal with stubborn board members or slick defense attorneys without legal representation of their own. If your matter is serious it may be necessary for you to retain an experienced trial attorney to help you resolve the problem in the most efficient manner. It is important that the Florida Attorney you decide to hire specializes in representing owners in their claims against their associations. Many condo attorneys in South Florida say they represent owners when the majority of their work is for Associations. As a Trial Attorney with over 20 years of experience I choose not represent Associations. I only represent individuals. Half of my practice involves representing condo owners and homeowners resolve their disputes against their associations and the other half of my practice involves representing individuals that have been seriously injured as a result of someone else’s negligence. I have been approached by Associations but decided long ago not to represent them in order to keep the battle lines clear.
If you decide to hire an attorney to represent you in your dispute against your association here are some things to consider. Almost all cases are handled on an hourly basis. What that means is that you pay the attorney for all of his or her time spent dealing with your case. The attorney should keep accurate time records showing what they did and how much time they spent doing it. You will most likely have to provide the attorney with an amount to be kept in Trust as a Retainer. Some attorneys will make the retainer non-refundable while others allow it to be refundable. The attorney should send you a monthly statement itemizing his time and charges. Usually you will be asked to replenish the retainer which is like a security deposit for a month of the attorney’s time.
If your case is going to involve litigation the attorney’s time will be significantly greater. It is important to be totally up front with your attorney about the facts and circumstances surrounding your case so that he can help you decide on the best course of action. If your attorney successfully resolves your case against the association you may be entitled to reimbursement for your attorney’s fees and costs from the association.
The Law Offices of Herb Milgrim, P.A. has over 20 years of extensive legal experience. We serve the legal needs of individual Condominium owners, Home owners and Cooperative owners in resolving disputes with their Associations throughout Broward, Dade and Palm Beach Counties, including Hollywood, Davie, Fort Lauderdale, Pembroke Pines, Hallandale, Sunny Isles, Aventura, North Miami, Boca Raton and West Palm Beach with two convenient office locations in Hollywood Florida and Boca Raton Florida.
We provide prospective clients with a Free Case Evaluation. Once we have been retained we review all of the relevant documents and governing Florida Laws and advise our clients on the best course of action.
I have spoken with many Florida Condo Owners that have water damage from roof leaks or other leaks caused by the Condo Association’s failure to maintain the common elements. While the law is clear that the Association has a non delegable duty to maintain the common elements, a problem arises for the individual owners. Many owners have significant damage to the walls and interior of their apartment that needs immediate repair, replacement and even mold remediation. Unfortunately, it would not be wise to repair the interior of the individual Condo unit until the external source of the water leak or intrusion is repaired. Because the water intrusion or leaks usually begin from the common elements the individual owners are precluded from hiring their own people to fix the leak according to the provisions in the Governing Documents of the Condominium Association.
Many owners trying to deal with the Association on their own have experienced considerable delays and stonewalling in response to their requests that the leak be fixed. In some cases the Association will try to blame the cause on other owners or third parties like roofing companies and plumbers. I spoke to one individual that lost his tenant as a result of mold caused by the water damage. Due to the Association’s delay tactics he may lose another season’s rent because the interior of the apartment cannot be repaired until the roof leak is fixed. While some Associations are quick to deal with these type of issues they are usually in the minority. Unfortunately, until the Condo Association Board is faced with a lawsuit or the threat of litigation coming from an experienced Trial Attorney they may never take the appropriate steps to repair the source of the leak. I have one client that complained of water leaking into her townhouse for six months. Even when the Fire Marshall condemned the dwelling due to the severe water and mold damage, the Association still failed to take action. It wasn’t until a lawsuit was filed against the Association that any positive steps were taken.
Don’t try to deal with the matter on your own. Seek out legal advice from an experienced Trial Attorney that specializes in representing condo owners. Your Association keeps expensive Florida Law Firms on Retainer so they can fight and delay your claim, and they pay these expensive Law Firms with your money. You should not be forced to deal with experienced Property Managers and Attorneys without having someone fighting for you in your corner?
Many Florida Condo Owners make the mistake of hiring a Florida lawyer that claims they represent owners when the majority of their clients are Associations. We do not represent Associations. We have been approached by Associations in the past to keep us on retainer but, as a matter of principal and to keep the battle lines clear, we do not accept cases from Associations.
The Law Offices of Herb M. Milgrim, P.A. is a Florida Law Firm that specializes in representing Condo Owners, Homeowners and Cooperative Owners that have disputes or are contemplating Litigation or a Lawsuit against their Association. Herb Milgrim is a tough trial attorney with over 20 years of experience. We provide prospective clients with a Free Case Evaluation. Once we have been retained we review all of the relevant documents and governing Florida Laws and advise our clients on the best course of action.
Remember that the Associations keep expensive Law Firms on retainer using your money. Before you try and fight the Association you should contact us to get a free case evaluation. We serve the legal needs of condo owners, homeowners and co-op owners throughout Broward, Dade and Palm Beach Counties, including Hollywood, Davie, Pembroke Pines, Coral Springs, Pompano Beach, Hallandale, Sunny Isles, Aventura, Downtown Miami, North Miami Beach, Boca Raton and West Palm Beach with two convenient office locations in Hollywood Florida and Boca Raton Florida. Call us now at 954-966-3900.
The rainy season is upon us in Florida. Every afternoon the clouds form and the rain pours. Condo owners and homeowners need to be alert to the signs of roof leaks, water damage and mold contamination. During heavy rains be sure to check the ceiling and areas around the window for signs of moisture.
For some condo owners in Florida they may not even be aware that their condo is slowly becoming contaminated by mold. According to the Florida Department of Health:
Many building materials (such as wood, sheetrock, etc.) provide food that can support mold growth. Even dust that has settled on these materials or furniture can be a food source for molds. Molds can grow almost anywhere there is enough moisture or high humidity. Controlling moisture is the key to stopping indoor mold growth, because all molds require water to grow.
In Florida, moisture can come from anywhere but some of the main culprits in Condominium’s and Townhouses are from the Roof Elements or from the Plumbing. If you have water damage or mold contamination due to a roof leak there is a good chance that your Association is responsible for this as they have a non-delegable duty to maintain the common elements. Don’t let your Association put the blame on someone else like the roofing company. Because the Association’s duty to maintain the common elements cannot be delegated they are directly responsible to damaged owners. If they deny your claim or cause unnecessary delay you can sue them and recover your damages and attorneys fees if successful.
Water damage may also be caused by faulty plumbing or broken air conditioners. If that is the case you should consult with an experienced Condo Lawyer that specializes in representing owners. The Attorney will most likely need to review the Governing Documents of the Condominium Association to determine if the cause of your leak was due to failure to maintain the common elements or limited common elements or from something that was under the care and control of another owner.
It is important to remember that even though the damage is to the interior of your home that does not mean that you are limited to bringing a claim against your own insurance company. Many Association board members try to pawn off the Association’s liability by getting the owner to bring a claim against their own insurance. Unfortunately most individual policies either won’t cover mold damage or have limited coverage. If you have water or mold damage in your condominium, townhouse or cooperative in Hollywood, Hallandale Beach, Sunny Isles, Downtown Miami, Aventura, Davie, Dania Beach, Cooper City, Pembroke Pines, Tamarac, Coral Springs, Boca Raton, Delray Beach, or anywhere in South Florida be sure to contact us for a free case evelaution.
The Associations have Law Firms on retainer using your maintenance dues so it is important that you seek out counsel before things get out of control.The majority of our real estate cases and condo owners’ cases are billed on an hourly basis. However, we always strive to recover our client’s legal costs as part of our successful case.
*You should always consult with a Florida Law Firm that specializes in representing condo owners when contemplating a lawsuit or when faced with the threat of a lawsuit by your condo or homeowner’s association.
Alternative dispute resolution (A.D.R.) is discussed in § 718.1255 of the Florida Statutesdealing with Condominiums. A.D.R. is used to resolve a case without having to file a lawsuit. Since lawsuits are expensive and time consuming the Courts favor the resolution of disputes amicably. In fact, with Condo claims, nonbinding arbitration is mandatory and if you file suit without first pursuing your remedies in arbitration the Judge will be required to dismiss your case. Therefor it is important for owners of Condominiums and Coops to first determine whether their claims are subject to Arbitration or Litigation before they attempt to file a lawsuit. (This topic will be discussed more fully in a later post to sucribe to future posts click here.)
One of the main differences between the statutes governing Homeowners Associations (HOA’s) and Condominium Associations (COA’s) is that before suit may be filed against an HOA the owner must send out an OFFER TO PARTICIPATE IN PRE-SUIT MEDIATION PURSUANT TO FLA. STAT. § 720.311 (2)(b). This demand to resolve the dispute through presuit mediation is required before a lawsuit can be filed concerning the dispute. Pursuant to the statute, the parties are required to engage in presuit mediation with a neutral third party mediator in order to attempt to resolve this dispute without court action, and the aggrieved party demands that you likewise agree to this process. If you either side fails to participate in the mediation process, suit may be brought without further warning. Moreover, the party failing to participate in mediation is precluded from recovering fees or costs in any litigation or arbitration proceeding involving those issues.
The process of mediation involves a supervised negotiation process in which a trained neutral third party mediator meets with both parties and assists them in exploring possible opportunities for resolving part or all of the dispute. By agreeing to participate in presuit mediation, you are not bound in any way to change your position. Furthermore, the mediator has no authority to make any decisions in this matter or to determine who is right or wrong and merely acts as a facilitator to ensure that each party understands the position of the other party and that all options for reasonable settlement are fully explored.
If you have been sent a request to attend pre-suit mediation or are contemplating litigation against your Association you should first consult with an experienced Florida Condominium Law Firm. When choosing a Law Firm make sure that they do not also represent Associations as there could be the potential for conflicts of interest to arise. The Law Offices of Herb M. Milgrim, P.A., specializes in representing owners in disputes with their associations. We do not represent Associations.
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