Association must follow Condo Act in event of hurricane damage


Question: What is your take on air conditioners damaged by Hurricane Irma? They are on the roof of each of our condos. Some were damaged because another roof came off the building next door, and some were blown over by the storm. The association is planning to assess all unit owners for these air conditioners. Our deductible is very large, so we have to be assessed. Does the statute overrule the condo docs?

We also had several hurricane shutters blown away. The board said they were not covered at all. What is your take on this? — B.F.

Answer: Condo Act, at 718.111(11), provides that every condominium association is required to carry casualty insurance for the property as originally installed by the developer or as added as an approved material alteration, minus certain items that are expressly delineated in the statute (such as flooring, wall coverings, cabinets, etc.). If an insured item is damaged by a casualty event (such as a hurricane), the association is responsible for its repair or replacement as a common expense of the owners. This is true even if the damaged item is in a single unit. For example, the association is responsible for damaged drywall, and the cost of the repair is borne by all of the owners, together, rather than the owner in whose unit the drywall was damaged.

Assuming that the air conditioners were originally installed by the developer, they would fall within the association’s insurance responsibility. Whether they were damaged by a neighboring roof or by the wind itself, it would still be casualty damage, and so they would need to be repaired or replaced by the association as a common expense. Hurricane insurance deductibles are extremely high, so it is not surprising that this project would require a special assessment. If you have been collecting reserve funds toward these air conditioner units, you could use those funds.

As for the hurricane shutters, it would depend on whether they were originally installed by the developer (or by the association as a common expense), or if they were installed by each individual owner. If they were installed by the owners individually, it would be their individual responsibility to replace the shutters under their own insurance policy.

Q: I live in a condo where the weight limit for dogs is 20 pounds. What would be the procedure to try to get it changed to 50 pounds? Also, what kind of cost could be involved? — L.K.

A: The first question is whether the 20-pound rule is contained within your declaration of condominium, or if it is just a rule passed by the board of directors. If it is a board rule, the board members can usually change it on their own — so all that is required is a willing board. If it is contained in the declaration, however, the declaration would need to be formally amended, and that process ordinarily requires a vote of the membership. Your declaration will expressly state what type of vote is needed to approve an amendment. It could be something easy to achieve, such as the approval of a percentage of voters who participate in a legal meeting; or it could be something more difficult, such as requiring the approval of a large percentage of all of the owners.

In terms of cost, your attorney would prepare an amendment package, which will include a notice of special membership meeting (where the vote will take place); a proxy form for those persons who cannot attend the meeting in person; an exhibit describing the exact amendment (presumably, crossing out No. 20 and adding No. 50); and a certificate of amendment to be executed in the event that the amendment is approved. Your attorney may also send a letter describing the amendment process and how to run the meeting, and what to do if the initial vote is not successful. You should assume it will take several hours for your attorney to draft the package, which will include the time needed to review the governing documents as a whole, and check for any conflicting language or amendments. You also will need to figure in the cost of mailing out the voting package.

I have seen associations prepare voting packages on their own, without soliciting legal advice. There are a lot of variables involved, however, and I have seen board-drafted amendments that include legally-ambiguous language or create conflicts with other documents. If you are going to go through the trouble of soliciting a membership vote to make this change, it is worth investing in a few hours of your attorney’s time to get it done properly.

Ryan Poliakoff is a co-author of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living” and a partner at Backer Aboud Poliakoff & Foelster, LLP. Email questions to condocolumn@gmail.com. Please include your hometown.



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