Posted By Larry Tolchinsky on September 30, 2014
As we all know, here in Florida, condominiums are a very popular form of residential real estate ownership. Floridians as well as investors, retirees, and part-time residents (”Snowbirds”) find lots of advantages to buying a condo in our state. There are lots of condos to choose from, especially in South Florida. Condo units are available in high, skyline towers as well as in lower, waterfront complexes close to the oceanfront.
However, just like any other piece of residential real estate, Florida condos need to be repaired. Sometimes the repairs are minor — changing out a faucet, fixing a running toilet — and it’s clear that the unit owner is responsible for getting the work completed and paying for those repairs. In other situations, however, the line between the condo unit owner’s responsibility and the duty of the overseeing condominium association is not clear. Many major condo repairs fall into this gray area.
1. Condominium Owners and the Condo Association
When repairs are needed to a Florida condominium, there are two potential parties responsible for paying for the work: the owner of the individual condo unit or the condominium association. In deciding who pays the bill between the owner and the association, Florida law controls. See, Florida Statute 718.113 of the Florida Condominium Act.
According to that statute, the individual owner has sole ownership of his home or “unit,” and has joint ownership of the common areas, which is all of the property in and surrounding the condominium that aren’t individual homes or “units.” Where the ownership line exists between the owner’s unit and his shared ownership in the common areas is found in the real estate documents creating the condominium itself.
These documents include the condominium creation documents filed in the public record like the Bylaws and the Declaration along with limitations found in some real estate records which include restrictive covenants (i.e. restrictions in deeds). (Each owner usually receives a copy of all these documents when he or she contracts to purchase their condo unit.)
As stated above, condominium common areas are collectively owned, and their boundaries are identified in the condo documents. Usually, condo common areas involve things like the pool and parking areas, sidewalks; however, they also include areas within a condo unit, including the drywall on the exterior wall of each unit and the cement flooring of each unit.
While the individual condominium documents may specify things differently, as a general rule here in Florida, the Condo Association (all the joint owners) pay for maintaining and repairing the common areas and the unit owners pay for their own unit’s maintenance and repair. If the joint owners have assigned a portion of the common areas for one unit owner’s sole and private use, then that owner may be held responsible for this section’s maintenance and repair, as well.
2. Do you need permission to make repairs to your unit?
What about when repairs are made by the unit owner which are found unacceptable by the condo association? For instance, what happens if the unit owner repairs a rotting wood balcony and the association finds the material used on the new balcony is unacceptable? Who pays to repair/replace the vetoed balcony material?
Again, this will depend upon the language within the specific documents controlling the condominium. The specific provisions in the condo documents regarding alterations and repairs to unit balconies will need to be examined. Another factor to be examined will be the Florida Condominium Act.
However, as a general rule, the unit owner normally pays for the replacement of the balcony material in the above scenario if the owner chose the material, without approval, that did not meet with condominium standards.
3. Material Alterations
Sometimes, big changes are required (pursuant to a 40 year inspection finding) or needed in a condo community. In this regard, Florida Statute 718.113(2)(a), provides that 75% of the entire membership must approve a “material alteration or substantial addition” to the common elements, unless the declaration provides for an alternative approval method.
Big changes mean the majority of the unit owners must agree, because the unit owners will all be responsible for the expenses involved in these changes or repairs. Add a pool or tennis court? Extend the parking lot? These are “material alterations” or “substantial additions” to the condominium and their cost must be shared.
What is a “material alteration” under Florida law? A change to the condominium property will be considered material or substantial if it “palpably or perceptively varies or changes the form, shape, elements or specifications” of the common elements “in such a manner as to appreciably effect or influence its function, use or appearance.” Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971).
Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at firstname.lastname@example.org, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.