Corona Law Firm, P.A. | Condominium Litigation Attorneys | Miami, Florida
We see this fact pattern constantly in Miami-Dade and Broward condominiums, whether it is a high-rise in Brickell, Aventura, or Miami Beach, or a garden-style building in Kendall, Doral, Miami Lakes, Hialeah, or Coral Gables. Water comes in after a storm, from a common element pipe, or from the unit upstairs, and the owner finds a stain spreading across the ceiling or drywall swelling along a wall. The owner reports it, and the association or property manager writes back with one of two usual answers: it is inside your unit, so it is your problem, or it is coming from your neighbor’s unit, so it is a neighbor-to-neighbor issue and the association is staying out of it.
In most buildings, both answers are wrong, under Chapter 718 and under the condominium’s own declaration.
Your Unit Ends at the Paint, Not at the Wall
The declaration of condominium defines the unit. Under the Condominium Act, a unit is the part of the condominium property subject to exclusive ownership “as specified in the declaration,” § 718.103(31), Fla. Stat., and everything not included in the units is a common element, § 718.103(9), Fla. Stat.
Most Florida declarations set the unit boundary at the unfinished interior surface of the perimeter walls, ceilings, and floors. The owner owns the paint, the wallpaper, and the airspace between the walls. The drywall itself on perimeter walls and ceilings, the studs behind it, the slab, the roof, and the exterior all fall outside the unit boundary. They are common elements, owned in undivided shares by all the owners and controlled by the association.
Section 718.108(1) confirms that the common elements include all condominium property not included in the units, easements through units for the pipes, conduits, and wiring that serve more than one unit, and an easement of support in every portion of a unit that contributes to the support of the building.
Keep that in mind, because it answers both of the association’s usual responses.
When a Common Element Pipe Fails, the Association Owes More Than a Plumber
Section 718.113(1), Florida Statutes, states that “[m]aintenance of the common elements is the responsibility of the association,” and that the association shall provide for the maintenance, repair, and replacement of the condominium property for which it bears responsibility under the declaration. When the source of the water is itself a common element, a failed roof membrane, cracked stucco, a deteriorated riser, or a common pipe running through the wall cavity, that duty obligates the association on three fronts.
First, the association must repair the source. Plumbing serving more than one unit, the roof, and the building envelope are common elements, and their repair is a common expense of all owners. §§ 718.108, 718.113(1), 718.115(1)(a), Fla. Stat.
Second, the association must repair its own damaged common elements sitting inside the owner’s unit. If the declaration draws the boundary at the unfinished surface, the wet perimeter drywall and the stained ceiling drywall belong to the association, even though they are physically located inside the owner’s condominium. An association cannot disclaim responsibility for its own common elements simply because they happen to be on the owner’s side of the front door.
Third, the association is liable in damages for the harm its neglected common element caused inside the unit. Section 718.303(1), Florida Statutes, gives the unit owner an action at law or in equity against the association for failing to comply with the statute and the declaration, and the statute itself recognizes this exact category of claim: § 718.1255(1) expressly refers to “claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property.” So when the association knew or should have known about the aging riser or the failing roof and let it go, the owner’s claim is not limited to making the association patch the wall. It extends to the flooring, the cabinetry, the baseboards, the remediation costs, and the other losses the failure caused, and the prevailing owner recovers reasonable attorney’s fees. § 718.303(1), Fla. Stat.
“It’s a Neighbor to Neighbor Issue” Is Not the Law
The other deflection arrives when the water comes from the unit upstairs or next door. The association tells the damaged owner to take it up with the neighbor and washes its hands. Chapter 718 does not permit that.
Every unit owner is bound to comply with the Act, the declaration, and the bylaws, § 718.303(1), Fla. Stat., and virtually every declaration prohibits an owner from fixing or replacing a condition in the unit that is part of the common elements. A unit owner may not do anything within the unit that adversely affects the safety or soundness of the common elements. § 718.113(3), Fla. Stat. The association is the entity charged with enforcing those obligations, and § 718.303(1) authorizes the association to sue a noncompliant owner. The association also holds an irrevocable right of access to every unit “when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit.” § 718.111(5)(a), Fla. Stat. In plain terms, the association has both the power and the duty to get into the offending unit and make the leak stop, whether the neighbor cooperates or not.
And while the association pursues the neighbor, its own maintenance obligation never stops. The wet drywall and ceiling in the damaged unit are still common elements, and § 718.113(1) still requires the association to dry them, treat them, and repair them. The Act gives the association its remedy on the back end: where the damage was caused by a unit owner’s negligence, the costs of repair are chargeable to that owner. § 718.111(11)(j)1., Fla. Stat. The association can charge the neighbor, lien the neighbor, or sue the neighbor. What it cannot do is leave its own walls wet and growing mold in your unit while it points fingers down the hall.
When the Association Refuses
Florida Statute, § 718.303(1), Florida Statutes, gives the owner a cause of action at law or in equity against the association for failing to comply with the statute and the declaration. The prevailing party recovers reasonable attorney’s fees. A claim for damages to a unit based on the association’s failure to maintain the common elements is also expressly excluded from the mandatory nonbinding arbitration process, § 718.1255(1), Fla. Stat., so the owner may proceed directly to circuit court.
Owners should not sit on these claims. Wet drywall grows mold within days, the damage spreads into flooring and cabinetry, and the longer the condition sits, the more room the association has to argue the owner failed to mitigate.
Talk to a Miami Condominium Attorney
Corona Law Firm, P.A. represents condominium unit owners throughout Miami-Dade and Broward in disputes with associations over water intrusion, common element repairs, and association neglect. If your association refuses to repair a leak coming from the roof, the exterior walls, or the common plumbing, tells you a leak from a neighboring unit is not its problem, or refuses to repair the drywall and ceilings it owns inside your unit, you have enforceable rights under Chapter 718, including the right to recover damages and your attorney’s fees.
Call Corona Law Firm, P.A. at (305) 547-1234 or visit us at 6700 SW 38th Street, Miami, FL 33155.
This article is for general informational purposes only and does not constitute legal advice. Every condominium declaration is different, and the outcome of any dispute depends on the language of the governing documents and the facts of the case.
