Florida Condo Owners, Associations Battle Over Windows
If your condo’s windows were broken by Hurricane Wilma, the insurance of your homeowners association should pay to replace them, right? It’s a question popping up all over Florida, and as of right now, there is no clear answer.
Despite the recent passing of a state law requiring condominium associations to take out insurance in the event of such damage, The Miami Herald reports that some associations are informing owners that they have to pay for replacement windows and patio doors individually.
A provision in some condos’ documents that holds individual owners responsible for their own windows and patio doors is what such associations are pointing to in support of their argument. Therefore, a person’s own homeowner’s insurance must pay for the damage. The clause is common in agreements for low- or mid-rise condominiums built since the 1970s, which also happen to be older buildings that were hit hardest by Wilma. With most high-rises and newer buildings, the association is responsible for all exterior doors / windows.
As if that weren’t enough, many insurance adjustors are telling individual condo owners that their personal policies won’t cover the window and door damage.
So far, experts within state agencies have given mixed signals over how the law - passed in 2004 - should be interpreted. The Florida Division of Land Sales, Condos and Mobile Homes in the Department of Business and Professional Regulation (DBPR) maintains that generally, associations should pay for damaged windows even if the cost doesn’t reach or exceed the premium’s deductible.
A DBPR spokesperson said that the association should pay out of its reserves or a general fund, or by enacting a special assessment, rather than saddling individual unit owners with the cost.
Meanwhile, Dr. Virgil Rizzo, Florida’s condo ombudsman, concurs with association lawyers who claim that the new law doesn’t mean an individual can’t be held responsible for damage after a casualty — if that’s what the original documents say.
”It may seem wrong or inequitable, but it is in your [documents],” Rizzo said.
TIME IS OF THE ESSENCE
An association may waste time and money arguing over the issue with home owners, which has become a concern of many residents. There is also the issue of safety. Associations need to ensure all the windows will protect the entire building. If one person installs windows incorrectly, the entire floor is in danger during the next hurricane. And as we all know, there will be more.
”As we saw in Wilma, if one unit gets breached, then it affects all the units on a particular floor,” said engineer John Pistorino, who helped create Florida’s tougher building codes after Hurricane Andrew in 1992.
The Florida State Legislature will attempt to resolve the issue in March, says state Rep. Julio Robaina, R-Miami, who has pushed for legislation on community association issues.
The law that took effect in January of 2004 requires condo associations to insure everything that makes up the building’s original contents, ranging from ceilings to walls. The intent is that associations make repairs for all items that they are required to insure, including windows and doors, after casualties such as hurricanes. Last year, however, the long string of hurricanes began and the controversy over the windows and doors followed.
Some boards found that their association’s deductibles were so high that they couldn’t make an insurance claim, or that they were required to first use insurance money to pay for common elements such as roofs and air conditioning units. There was simply no money left over for windows and doors after that.
WHO IS REQUIRED TO DO WHAT?
”The boards’ hands are tied. They are not making arbitrary decisions. This is what they are required to do. It all depends on what the governing documents provide regarding uninsured losses and whether or not the windows constitute a part of the unit or a part of the common elements, ” said attorney Donna D. Berger, Executive Director of the Community Association Leadership Lobby (CALL).
Insurance companies have wrestled with the different interpretations of the law and have asked for advice on how to handle individual claims, further delaying recovery efforts. A spokesman State Farm, the leading provider of Florida homeowner’s insurance, said the company is aware of the confusion, but may still elect to pay for the broken windows of individual policy holders, depending on each condominium’s bylaws.
Some unit owners, meanwhile, have sought help from the DBPR to make their associations pay for the damage. Operating out of its Fort Lauderdale office, the DBPR asked two Palm Beach County condominium associations to replace broken windows and patio doors from last year’s hurricanes. The 256-unit Water Glades complex in Riviera Beach agreed.
The ongoing confusion involved in trying to rebuild from Wilma is not likely to dissipate any time soon. For every condo case that is closed, two or three more remain unsettled. Thousands of personal hazard insurance claims remain unresolved, as well, and it remains to be seen how the fallout from Wilma and future storms will change the face of Florida real estate laws.
