In deciding whether to file a lawsuit against your Condominium Association or Homeowner’s Association, one of the most powerful claims that can be raised is the Association’s failure to maintain the common elements.
For Condominium Associations governed by Chapter 718 of the Florida Statutes, Section 718.113(1) provides in material part the following: “Maintenance of the common elements is the responsibility of the association.” For Homeowner’s Associations governed by Chapter 720 of the Florida Statutes, Section 720.303(1) also provides that maintenance of the common elements is the responsibility of the association.
Neither Condo Owners or Homeowners are required to arbitrate their claim of failure to maintain the common elements. Condo Owners do not have to go through any type of Alternative Dispute Resolution if their claim is based upon the Association’s failure to maintain the common elements. They may proceed directly with the filing of a lawsuit in the appropriate State Court in the County where the Association is located. Note: Homeowners governed by Chapter 720 must first comply with the Presuit Demand for Mandatory Non-binding Mediation before filing suit otherwise they may forfeit the right to claim attorney’s fees and costs.
Many Associations have provisions in the Governing Documents defining the Common Elements and making the Association responsible for maintaining them. Usually these provisions are found in the Association’s Declaration. Although each Association may have different provisions, the majority of Condo Associations declare that everything beyond the drywall of the individual units is deemed to be common elements. Some of the typical common elements include, the roof of the building; pipes, wires, conduits, or other public utility lines running through the individual unit which serve more than one unit. Some associations require the Condo owner to maintain the plumbing and electrical that is inside their unit- some do not. It is important for a condo owner to have an experienced Florida Condominium Lawyer review the documents to determine whether the issue concerns the common elements as they are defined in the Governing Documents or if the Condo Owner is responsible for maintaining the condition at issue.
Some of the significant types of claims concerning the Association’s failure to maintain the common elements include water damage from roof leaks, mold damage, fire from faulty electrical, noise complaints from roof top generators, inadequate water cooling towers causing unit owner air conditioning to malfunction, and of course there are the obvious claims like a resident or guest being injured due to inadequate security or a dangerous condition in the common areas of the building. (be sure to click one of the links on the upper right of this page to suscribe to this feed so that you don’t miss part 2 of this article or any future articles)