Archives for March 2013

Florida Condominium Damage Claims for the Association’s Failure to Maintain the Building’s Common Elements – Is Alternative Dispute Resolution Required Prior to Filing a Lawuit?

Under Florida law, when a unit owner sustains damage to their condominium whether by water or mold, due to the Association’s negligence in failing to maintain a common element (to wit, the exterior wall of the building, roof, interior wall pipe that services multiple units, air conditioning stack that services multiple units, sewage pipe/stack that services multiple units, windows (if the Declaration states this is a common element), etc.), they are not required to seek or submit to alternative dispute resolution (ADR) avenues prior to filing suit.

According to Florida Statute §718.1255,  a statute governing condominiums and alternative dispute resolution, voluntary mediation and/or mandatory nonbinding arbitration, if a unit owner and its Association are involved in a “dispute” as defined under this statute, they are required to file a petition with the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation, and seek an alternative dispute resolution avenue (non-binding arbitration, to which the arbitrator can refer the parties to mediation) prior to filing a lawsuit for damages, injunctive relief, etc.

Under §718.1255(1), a “dispute” means any disagreement between two or more parties that involves:

(a) The authority of the board of directors, under this chapter (Chapter 718) or association document to:

1. Require any owner to take any action, or not to take any action, involving that owner’s unit or the appurtenances thereto.

2. Alter or add to a common area or element.

(b) The failure of a governing body (ie., association), when required by this chapter or an association document, to:

1. Properly conduct elections.

2. Give adequate notice of meetings or other actions.

3. Properly conduct meetings.

4. Allow inspection of books and records.

Of note, a “dispute” does not include any disagreement that primarily involves: title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a fee or assessment, or the collection of an assessment levied against a party; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; or claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property.

Moral of the Story: Whether you are a condo owner that lives in Coral Springs, Cooper City, Hallandale, Boca Raton, Homestead, Brickell, South Beach, Key Biscayne, Weston, Pompano Beach, Tamarac, Plantation, Delray, Deerfield Beach or another area within Miami, Fort Lauderdale or Palm Beach, if your unit sustains water, mold or any form of property damage due to the Association’s negligence in failing to maintain a common element, you are not required to seek or submit to alternative dispute resolution (ADR) avenues prior to filing suit.  While it is certainly recommended to attempt to resolve a property damage dispute with your Association (or another unit owner), if you are unsuccessful, you can simply file a lawsuit and recover your damages via the court process.