Condominium associations have duty to repair common elements regardless if the damages were caused by an event in a non-common element unit.

This case stems from Broward County condominium owners appealing a final summary judgment on their breach of contract and negligence claims for the condominium association’s failure to repair damage to the common elements. Unit owners noticed a water leak in a neighboring unit and brought it to the association’s attention. The association, however, stated that damages within units and the plumbing are the responsibility of the individual unit owners. As such, no remediation of any leaking was done by the association. The owners brought suit, and the association defended on the grounds that it was the individual unit owner’s negligence that caused leaking and the ensuing damages to neighboring units. The trial court granted the association’s motion for summary judgment on the grounds that the plumbing in the unit was not a common element.

The 4th District Court of Appeal stated that the issue was whether the Condominium’s Declaration and the Condominium Act required the association to repair the damages to a unit even if the damages were caused by a leak from a neighboring unit.

The relevant portion of the Declaration stated:

“Common Elements” shall mean and includes: (a) The portions of the Condominium Property which are not included within the Units.

…

all maintenance, repairs and replacements in or to the Common Elements (other than Limited Common Elements as provided above) shall be performed by the Association and the cost and expense thereof shall be charged to all Unit owners as a Common Expense, except to the extent arising from or necessitated by the negligence, misuse or neglect of specific Unit Owners, in which case such cost and expense shall be paid solely by such Unit Owners. 

Likewise, the Condominium Act provides that “[m]aintenance of the common elements is the responsibility of the association.” With the common elements being defined as: 

…the portions of the condominium property not included in the units.

The Declaration defines the boundaries of each unit as the lower surface of the unfinished ceiling and the interior surface of the walls and defines the common elements as any portion of the condominium property not included in the unit. Therefore, the space between the unfinished lower surface of Randy’s ceiling and the unfinished upper surface of the upstairs unit’s floor is a common element, as is the space between the unfinished interiors of Randy’s boundary walls and those of his neighbors. The common elements are the association’s responsibility to repair. 

The Declaration makes no exception for what causes the damage, although the Declaration provides that the association may assess a single unit owner for the repair expense when the repairs result from the unit owner’s negligence. Thus, if a single unit owner’s negligence damages a common element, the Declaration allows the association to seek the repair expense from the negligent owner, but it does not excuse the association from its duty to repair the damaged common element.”

Additionally, the Condominium Act clearly and unambiguously states that “maintenance of the common elements is the responsibility of the association.” The court found that this was a clear, plain, and obvious meaning for an association to maintain and repair the common elements without an exception as to what caused the damages. An association can seek compensation for repair and remediation of a common element if the damage was caused by the actions or negligence of unit owner, however, the ensuing damages to a common element are the association’s responsibility to maintain and repair. Thus, the trial court erred in its finding that the association had no duty to repair simply because the damages originated from a different unit. 

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