Naples Daily News Q&A Column, April 30, 2017

Q: My neighbor just painted his home an awful color that sticks out.  Every home in the neighborhood is a neutral color and this house is a bright yellow.  He claims that the President gave him the authorization to paint and that he showed the President a color swatch.  Is there anything we can do to fix this?

J.F., Naples

A: There are a few issues here, but let’s start first with the color.  Florida law changed in 2008 to require homeowners association to maintain color specifications for architectural review.  In other words, the HOA needs specificity with respect to acceptable and non-acceptable colors.  If the HOA does not have any such guidelines, it is questionable whether the HOA ever had the authority to deny the bright yellow even if it wanted to.  Based on the current statute, it is somewhat irrelevant whether the home is harmonious with neighboring homes and the focus is on having specific architectural guidelines.

The next part of the analysis requires a review of your HOA documents.  Most current HOA documents contain a covenant requiring approval from the Board or from the architectural review committee (“ARC”) before you can make external improvements or alterations.   This is important because most documents also require a written application and written approval before the home can be painted.  So, if the President only provided permission over the phone, or if the owner never submitted a complete application, or if the paint switch never made it to the ARC, the owner may have skipped a vital step before painting.  In these situations, I generally advise clients to gather any written communication or application concerning the application, if any, and any purported approval.  For example, if the President signs an approval on the HOA’s letterhead, the neighbor may have been reasonable in relying on this representation and the paint may have to stay.  Conversely, if the neighbor did not apply for approval and the “wink” approval from the President, the neighbor may be forced to comply with the applicable procedures and paint covenants.

Finally, it is important to note that both the Association and any owner in the HOA has standing to mediate and/or litigate this issue to compel the owner to follow the paint requirements.  As explained above, the likelihood of success will depend on the strength of the HOA guidelines and whether any requirement application and approval process was followed.

Q: An owner on the fourth floor of the condominium had a water leak that reached all the way to the first floor causing a lot of water damage.  The rumor is that the hot water heater was leaking for months and most likely the original hot water heater from twenty years ago.  The owner on the first floor had insurance and the owners on the second and third floor did not have insurance.  The owner with the leak does not have insurance.  How do we deal with this?

B.D., Bonita Springs

A: This is a great question with a few complexities.  When there is water damage, the first question is whether the water damage was caused by an insurance event.  This is generally not something that your attorney can answer, but for purposes of this answer we will assume it is not an insurable event.  If the damage was not caused by an insurable event, the Declaration of Condominium controls and dictates the responsible party to maintain, repair and replace the various elements of the building and the units.

Generally, most condominium documents provide that the owner is responsible to maintain, repair and replace the inside of the unit, and the Association is responsible to maintain, repair and replace the common elements.  Again, most condominium documents define the unit as beginning with the paint and the flooring, with the drywall and concrete slabs being part of the common elements.  These are general statements and therefore it is critical that you have a licensed attorney review your actual condominium documents to confirm the delegation of responsibilities.

This means that the Association is responsible to replace the drywall and other common elements damaged by the water.  Each unit owner would be responsible to repaint the drywall, replace the carpets, and replace any damaged furniture or décor inside the unit.

If the damage is substantial, each party would normally submit the claim to his or her own insurance company, but your question indicates only one owner had insurance.  Without insurance, each owner would be paying out pocket.

The follow up question usually revolves around reimbursement from the owner causing the leak.  Again, if there is insurance, the insurance company will generally determine whether to pursue the owner on the fourth floor for damages.  If there is no insurance, this would be the decision of the owner to pursue reimbursement for his or her damages, and the Association’s decision to pursue its damages.  This requires an analysis of the condominium documents and specifically whether the documents provide for negligence liability.  Most documents contain a covenant that an owner is responsible for damages caused by his or her negligence and failure to maintain his or her unit – including the hot water heater.  If you could demonstrate that the upstairs owner was negligent for failing the replace the heater, or failing to address the leak that was apparently known for months, you may be able to recover your damages from the owner of the fourth floor.  This may require the involvement of experts to determine the cause of the damage, lawyers, and possibly litigation, but there is a mechanism for reimbursement.

First, I would highly recommend you try to confirm the actual cause and the history surrounding the hot water heather.  I would also highly recommend you have your condominium documents reviewed and analyzed by a licensed Florida attorney to provide an opinion on liability.  Third, the Association could pursue an amendment to its condominium documents to address “high risk components”.  This amendment would, among other things, provides that an owner is required to periodically replace high risk appliances, hoses, or water connections.  It could also require maintenance programs for high risk components.  The purpose of the amendment is to create a presumption of negligence when an owner does not replace these high-risk components and this creates an easier path for owners to seek reimbursement from the owner with the leak.