Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC, respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Q: Prior to Hurricane Irma, our condominium windows never leaked. We did not have any issues during the winter and recent rains have shown some moisture and leaks around the windows. Who is responsible to make these repairs?
A: This is a good question because even though the windows sustained any impact by debris, it does not mean that the window, framing and related components were able to survive the wind and pressure changes associated with high winds.
The general rule is that the condominium association repairs and replaces property damaged by a hurricane that is insured by the condominium association. Florida law today generally requires the condominium association to insure windows. Thus, the critical question is whether the leaks are the result of damage caused by a hurricane event. Because most Board members and most owners are not structural engineers, you should consult with a professional to determine whether this is even plausible. If the answer is yes, the windows were damaged by a hurricane, then the Association would likely be responsible to make the appropriate repairs to the window and you would be responsible to repair and replace the paint, window coverings, floor coverings, and other property insured by the unit owner.
If the answer is no, and the window issues are caused by normal wear and tear, then you would need to analyze your specific declaration of condominium to allocate responsibility to maintain, repair and replace the windows. If this document indicates that the unit owners are responsible to maintain, repair and replace windows, you may ultimately be responsible.
It is important to note that the above analysis is general in nature. There are statutory mechanisms to alter responsibility for hurricane events and there are statutory exceptions to the Association’s insurance obligations. Thus, I would recommend you consult with a licensed Florida attorney to review your governing documents and any expert reports.
Q: We have a Director that routinely objects to the Association’s reserve study and wants to discuss the reserve study. The other Directors are comfortable with the professional that prepared the study and the recommendations. This Director routinely requests it be added to the agenda. What are the rights here?
-A.D., Hutchinson Island
A: The agenda is generally established by the person or group that can call a Board meeting in the first place. Generally, most governing documents provide that the President, a majority of the Board, or a percentage of the membership can force an agenda item on a meeting notice. If neither the President nor the other Directors believe the reserve discussion is necessary, the Director would ultimately need to garner support from the membership to trigger an agenda requirement.
Getting to the heart of the issue, the Board should also determine whether the Director’s objections have merit. If so, the Board is ultimately on notice of a need to make revisions or pursue a different reserve analysis. That being said, if the Board is comfortable with the existing analysis, there is no statutory requirement to continue to beat the proverbial horse.
I should note that not all governing documents are the same. I have seen governing documents that permit any Director to call a meeting or alter the agenda. There are also differences in the condominium and homeowners’ statutes dictating agenda requirements. Thus, I would recommend the Board consult with its legal counsel to review the Bylaws and provide the appropriate recommendation.
Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Ask questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.