Here in South Florida a common Condominium water damage issue is who is responsible for water damage to a unit if the leak occurred in another unit or in a wall. If one of the units touched by such misfortune is not covered by insurance, a huge nightmare can be the result for the owners or the Association.
There are two main factors at work in determining who is responsible for the damage.
First you determine where the leak originated. What is the source of the leak and where it is located?
Second you look to the Condominium (or Homeowner) documents. Typically this is the declaration document. We normally see that the Association is responsible for all piping inside of the wall. So simply put, if the leak occurs in the wall, the Association is responsible.
But what if the leak occurred outside of the wall? Typically we would see a leak occurring in the attachment to the water tank of a toilet or under a kitchen or bathroom sink. If the leak is on the owner’s side of the wallboard, typically it is the owner who is responsible.
However even if the leak occurred in the owner’s unit and not in the wall, the owner may not necessarily be liable for water damage to adjoining (or lower) units. The statutory requirement for the condominium owner to be liable is that, (1) the owner was negligent in not detecting the leak and addressing the leak, (2) the owner was negligent in the matters involving the leak or what caused the leak, and (3) the owner was in violation of the governing documents of the condominium. See Fla Statute 718.111(11)(j), and note that “condominium property” as defined in Fla Statute 718.103(13) is all parts of the condominium. If any of these three elements is present in the conduct of the owner, then the owner is liable to the affected parties damaged by the leak.
The question is, what if the owner’s conduct does not fall within these three elements? Is the owner not liable even though the leak did occur and did damage the other units? We have a case with this question going on right now. Stay tuned for the outcome!
This is the whole reason any homeowner/condominium owner and even renters should carry liability insurance. A little bit of premium can go a long way if and when something unforeseen happens, like a leak, or a fire.
© 2018 Richard P Zaretsky, Esq.
Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make. This article is for information purposes and is not specific advice to any one reader.
Richard Zaretsky, Esq., ZARETSKY LAW GROUP. ATTORNEYS AT LAW, 1615 FORUM PLACE, SUITE 3A, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660 RPZ99@ZARETSKYLAW.com - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide! Shortsales@Florida-Counsel.com New Website www.ZARETSKYLAW.COM.
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