In a Florida condominium, who pays for a repair depends on two questions asked in order. First, what caused the damage: ordinary wear and tear is allocated by the declaration under section 718.113(1), while damage from an insurable casualty, a burst pipe or a hurricane, is allocated by the insurance statute, section 718.111(11), which overrides the declaration. Second, what was damaged: the association maintains and, after a casualty, repairs the common elements and the parts of the building it must insure, while owners maintain their units and, after a casualty, replace the items the statute excludes from the association's policy: floor, wall, and ceiling coverings, fixtures, appliances, cabinets, countertops, window treatments, and personal property. Limited common elements sit in between, and the declaration decides who maintains them. Most maintenance disputes are resolved by asking those two questions in that order.
The three categories of property
Section 718.103 defines them. A unit is the part of the condominium property subject to exclusive ownership, bounded as the declaration provides, typically by the unfinished interior surfaces of the perimeter walls, floors, and ceilings. The common elements are everything else: land, structure, roof, exterior walls, hallways, amenities, and the pipes, wires, and ducts serving more than one unit. Limited common elements are common elements reserved for the use of one or more units to the exclusion of the others: balconies and lanais, assigned parking spaces, storage lockers, and often the air-conditioning equipment and the doors and windows serving a single unit.
The declaration's unit-boundary description is the most important paragraph in any maintenance dispute. Whether the drywall, the window glass, the window frame, the entry door, the balcony slab, and the plumbing inside the wall are unit or common element is not a matter of common sense; it is a matter of what the declaration says.
Ordinary maintenance: the declaration governs
Section 718.113(1) makes maintenance of the common elements the association's responsibility "except for any maintenance responsibility for limited common elements assigned to the unit owner by the declaration." Owners maintain their units. The declaration may, and usually does, assign to owners the maintenance of some limited common elements that serve only their units: the lanai screens and floor surface, the air-conditioning compressor, the front door and its hardware, sometimes the windows. Whatever the declaration says controls, and where it is silent the default applies: common elements to the association, units to the owner.
Two principles resolve most of the questions the declaration does not answer directly. Pipes, wires, and ducts that serve only one unit are usually the owner's from the point they leave the common line; those serving more than one unit are common elements. Structural components of balconies, walls, and roofs are the association's even when the declaration assigns the owner the surface, and the structural safety statutes now require the association to inspect and reserve for them regardless of what the declaration says about the tile on top.
Casualty repair: the statute governs
When damage results from an insurable event, section 718.111(11) takes over. Paragraph (f) requires the association's property policy to cover all portions of the condominium property as originally installed or replaced with like kind and quality, except personal property within the unit or limited common elements and "floor, wall, and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments," and their replacements, located within the unit and serving only that unit. Those excluded items are the owner's to insure. Paragraph (j) then provides that property the association must insure that is damaged by an insurable event is repaired or replaced by the association as a common expense, and the owner repairs the excluded items. The allocation applies whether or not the association actually collects insurance proceeds, subject to the association's deductible.
The effect is that after a casualty the association repairs drywall, the framing, the windows (if they are within the insured property), and the building systems, while the owner replaces paint, flooring, cabinets, appliances, and contents, regardless of how the declaration allocates ordinary maintenance of the same components. Associations may opt out of this allocation by a majority vote of the total voting interests and revert to the declaration's allocation for repair costs, but few do, and the opt-out must be recorded.
Paragraph (j) also answers the question of fault. A unit owner is responsible for the costs of repair or replacement of any portion of the condominium property not paid by insurance proceeds if the damage was caused by the intentional conduct, negligence, or noncompliance with the declaration or rules of the owner, an occupant, a guest, or an invitee. The association may charge those costs to the owner. The owner who left the bathtub running pays for the hallway carpet.
Water leaks
Leaks generate more maintenance disputes than everything else combined, and the framework above resolves them. A pipe inside the wall that fails suddenly and floods two units is an insurable casualty: the association repairs the building components under paragraph (j), each owner replaces flooring, cabinets, and contents (through their own HO-6 policies), and the association's deductible is allocated as the statute and its deductible policy provide. If the leak resulted from an owner's negligence, such as a failed supply line the owner had been told to replace, the owner bears the costs insurance does not cover. If it resulted from the association's failure to maintain a common element it knew was failing, the association's exposure extends to the owner's damages in a negligence claim, which the arbitration statute routes directly to court.
Two rules follow for boards. Never delay the repair while the responsibility is argued; the association has an irrevocable right of access to every unit under section 718.111(5) to maintain common elements and prevent damage, and a leak that runs for a week while letters are exchanged costs everyone more. And document the cause, with the plumber's report and photographs, because the cause determines who pays.
Access to units
Section 718.111(5) gives the association the irrevocable right of access to each unit during reasonable hours when necessary for maintenance, repair, or replacement of common elements or any portion of a unit the association must maintain, and at any time to prevent damage to the common elements or another unit. Owners may not refuse entry for those purposes, and declarations commonly require owners to provide keys. The right is limited to the stated purposes; it is not a general inspection right, and the association should give reasonable notice except in emergencies.
A maintenance responsibility chart
The single most useful governance document a condominium board can adopt is a chart that lists every building component, states who maintains it under the declaration in ordinary course, states who repairs it after a casualty under the statute, and states who insures it. Windows, sliding glass doors, entry doors, balcony surfaces and railings, air-conditioning equipment and lines, water heaters, plumbing branch lines, dryer vents, garage doors, and screens are the rows that matter. The chart is adopted at a noticed board meeting as an interpretation of the declaration, distributed to owners and managers, and updated when the declaration is amended or the statute changes. It does not change the declaration; it prevents the same argument from being had twice.
When the declaration should be amended
Declarations written before the insurance statute took its current form often allocate casualty repairs in ways the statute now overrides, and declarations of any age may assign maintenance in ways the community no longer wants, such as owner responsibility for windows in a building where the association would rather control replacement for uniformity and hurricane protection. An amendment can reassign maintenance of limited common elements, shift window and door responsibility to the association with a corresponding assessment adjustment, and conform the casualty provisions to the statute. Our governing documents guide covers the amendment process.
Frequently Asked Questions About Condominium Maintenance Responsibilities
Who is responsible for the windows?
The declaration decides for ordinary maintenance; many assign windows to owners, some to the association. After an insurable casualty, windows that are part of the property the association must insure are repaired by the association as a common expense regardless of the declaration. Hurricane protection has its own statutory rules.
The pipe in the wall leaked and ruined my floors. Does the association pay for my floors?
Generally not. Floor coverings are excluded from the association's insurance and repair obligation under section 718.111(11), so the owner replaces them, typically through the owner's HO-6 policy, unless the leak was caused by the association's negligence in maintaining a common element it knew was failing. The association repairs the pipe and the building components.
Who pays the association's insurance deductible?
The statute allows the association to allocate the deductible as a common expense or as the board's deductible policy, adopted under section 718.111(11)(g), provides. Where the damage was caused by an owner's negligence, the deductible and other uninsured costs may be charged to that owner.
Can the association enter my unit to fix a leak?
Yes. Section 718.111(5) gives the association an irrevocable right of access during reasonable hours for maintenance of common elements and at any time to prevent damage to the common elements or other units. Owners should expect reasonable notice except in emergencies.
Our declaration says owners maintain their balconies. Does that include the concrete slab?
Usually the declaration assigns the owner the surface (tile, paint, screens) and leaves the structural slab and railings to the association, and the structural safety statutes now require the association to inspect and reserve for structural components regardless of the declaration. Read the specific language; where it is unclear, an amendment or a board interpretation adopted as a maintenance chart is the fix.
Can we change who maintains what?
Yes, by amending the declaration with the vote it requires. Reassigning maintenance of limited common elements from owners to the association (or the reverse) is a common amendment, particularly for windows, doors, and air-conditioning equipment, and it should be paired with a review of the insurance program and the budget.
Contact Hamilton Mikes
Hamilton Mikes prepares maintenance responsibility charts, advises on casualty allocations and chargebacks, and resolves leak and repair disputes for condominiums throughout Southwest Florida. Call 239-594-7227 or visit our Governing Documents and Insurance pages.
Statutes and authorities referenced
- § 718.103, Fla. Stat. (definitions: unit, common elements, limited common elements, condominium property)
- § 718.113(1), Fla. Stat. (maintenance of common elements is the association's responsibility except LCE maintenance assigned to owners by the declaration)
- § 718.111(5), Fla. Stat. (association's irrevocable right of access to units for maintenance and emergencies)
- § 718.111(11)(f), Fla. Stat. (property the association must insure; items excluded and left to owners: floor, wall and ceiling coverings, fixtures, appliances, water heaters, cabinets, countertops, window treatments, personal property)
- § 718.111(11)(c), Fla. Stat. (deductibles)
- § 718.111(11)(j), Fla. Stat. (repair after casualty as a common expense; owner liability for damage caused by negligence or noncompliance; opt-out by vote at § 718.111(11)(k))
- § 718.112(2)(g) and § 553.899, Fla. Stat. (structural integrity reserve study; milestone inspections)