Living in a condo in Florida can mean beautiful sunshine, warm weather, and access to beaches year-round. But there are downsides: Florida’s humid climate and temperamental weather can cause challenges for homeowners. In non-hurricane years, water damage claims are often one of the most common sources of damage to structures.
Condominium association unit owners, boards of directors, and property managers are often faced with questions of responsibility for losses due to water damage within association property and units. This problem is complicated by the maze of legal terms within the insurance requirements of Florida Statute §718.111(11).
What Is Florida Statute 718?
Florida Statute 718 is the legal framework that governs the creation and operation of condominiums and condominium associations in the state. It also covers the legal rights and responsibilities for both individual condo owners and condo associations.
If you live in or own a condo in Florida, it’s probably worth spending some time familiarizing yourself with the statute in order to understand your rights and responsibilities under the law. This is especially true in the case of water and mold damage: Statute 718 covers who is responsible for replacing or repairing properties and structures that have suffered different kinds of damage.
Are HOAs Responsible for Water Damage in Florida Condos?
The short answer is, sometimes. The long answer is that responsibility for water damage in a condo depends on a few factors, including:
- Who or what caused the damage
- What was damaged
- How much damage was done
- Where the leak originated
Most HOAs have insurance that covers damage to shared structural elements like walls and ceilings; however, individual condo owners are typically responsible for individual property, in this case including paint or wallpaper, appliances, and floor coverings.
Consider a common scenario:
A leak from a faulty dishwasher in an upper unit causes water to flow into lower units and damages the ceilings and drywall within those units. Repairing the damage is probably going to be expensive; and it may be complicated further by a large deductible on the HOA’s insurance policy. If the damage comes in under the deductible, then, insurance proceeds don’t help cover the loss, leading to larger out-of-pocket expenses.
Under the Florida condominium statute, associations are generally responsible for the repair and replacement of the drywall within the condominium units. According to Florida Statute §718.111(11)(f), the association’s policy of hazard insurance covers everything that is defined as common property, like walls and ceilings. It does not cover personal property, which in this case includes things like wallpaper, carpet, appliances, cabinets, or window treatments.
In the leak scenario, the association’s insurance covers all drywall damage caused by a covered peril (in this case water damage) and all other damage, with the exceptions of that specifically excluded by the statute — provided that the loss is above the association’s policy deductible.
Remember the long answer above, though: Your upstairs neighbors could not foresee that their dishwasher would leak. But if, for example, your upstairs neighbor was negligent in some way that caused a leak — say they left the bathtub filling while they ran to the store — they might be responsible for the damages not only to their own condo but also to any other condos that were damaged.
Who Is Responsible for Mold in a Condo in Florida?
Again, it depends on a few factors, most importantly what was damaged. If the exterior drywall of your unit has mold as the result of what is called a “covered peril” (an event that is specifically named in the policy), your HOA would be responsible for repairing mold damage to the drywall itself, and you would be responsible for any paint or wallpaper that might need to be repaired.
Overall, the responsibility for repairing mold damage depends on multiple factors, just as it would for water damage or other covered perils; make sure to review both your individual insurance policy as well as that of your HOA to understand your particular situation.
Is the Condo Association Responsible for Drywall in Florida?
Almost always; but again, it depends on a few factors, namely where the drywall is located and whether or not the HOA has collectively voted to opt out of portions of Statute 718 (more on this below). In most cases, if the damage is to exterior drywall and the HOA has not opted out, the HOA is responsible for water damage to drywall since exterior walls are typically understood to be a common expense and are thus covered by the association’s insurance.
Can Condo Associations “Opt Out” of the Repair, Replacement, and Deductible Requirements?
Yes. Under paragraph (j) of 718, the association also pays the deductible as a common expense of the association unless it has voted to “opt out” of the provision of the statute. The “opt-out” provision in paragraph (k) states that an association can vote that repairs to damages that are typically the association’s responsibility are in fact the responsibility of the individual homeowner.
In a scenario like the one above where a dishwasher leaked and caused damage to the unit below, if the association has opted out of the deductible being a common expense, the association is no longer responsible for covering repairs to common structures, like drywall. In other words, if a majority of the association’s unit owners vote to “opt out,” the requirement to pay for repairs as a common expense and the requirement to pay the deductible as a common expense can be changed and is dealt with according to the condominium declarations. If damage was to only one unit, this “opt-out” may make it the unit owner’s responsibility to pay for the repairs and to pay the deductible.
If the HOA does vote to opt out of the repair, replacement, and deductible requirements of Statute 718, it must record a notice that includes both the date of the vote and the page of the official records book within the county records on which the declaration is recorded. The Statute allows an opt-out decision to be reversed by the same vote of a majority of the total voting interests of the association.
Associations considering whether to “opt out” of the repair, replacement, and deductible requirements of the Florida condominium statute should consult with their legal and insurance professionals who could likely help the board of directors weigh their options.
Can You Sue Your Upstairs Neighbor for Water Damage in Florida?
Yes, if the damage was caused by them in some way, either through negligence (e.g., they knew a pipe was leaking, and it later burst) or some kind of property modification (e.g., they changed their gutters, and it directed more water onto your balcony). You’d also need to prove both that your property was damaged and that they were responsible for that damage.
Can You Sue Your Condo Association for Negligence in Florida?
Yes. It’s a very similar situation to if the damage was caused by the negligence of your neighbor; if the HOA was negligent in some way — say, they knew about a leak in the roof and didn’t repair it in a timely manner — you may be able to sue them for the damages that resulted from that leak.
This gets much more complex if the source of the leak in your condo is unknown; in a recent Florida case, a homeowner sued the HOA after a series of leaks from unknown sources damaged her unit. In this case, the court found in favor of the HOA, since the condo’s Declarations covered the scenarios the homeowner had raised. This highlights the importance of being familiar with your own insurance policies as well as your HOA’s policies and the declarations for your association.
Further Resources on Insurance Coverage Law
Navigating the complexities of insurance claims can feel overwhelming. Whether you’re facing unpaid claims or simply filing for the first time, our eBooks equip you with the crucial information you need to advocate for yourself with confidence.
- Filing A Property Insurance Claim
- Condominium Hurricane Preparedness
- Insurance Company Response Time
- What To Do When You Have a Denied/Underpaid Claim
- Wildfire Claims
- Flood Claims Handbook
- More Information on Hurricane Deductible and Policy Limits
Why Merlin?
Are you fighting an insurance company that won’t pay up on claims? With nearly 40 years of practice and $2 billion in recovered claims, our team stands by your side to ensure you can face any insurance challenge with confidence. Contact us today for a consultation, or read more about how we’re your trusted advocate.
