“Who is going to fix this?” and “Who is going to pay for this?” These are common questions facing unit owners and associations when condominium property needs repair. The answer will most likely be found in the condominium declarations, which typically describe the boundaries of each unit. But sometimes the declarations fail to adequately describe those boundaries; and the fine line delineating who is obligated to repair becomes indiscernible and worse, debatable. This is especially true when describing windows, doors, sliders and skylights in the associated with the condominium unit. Because the materials used are exposed to both the inside and outside of each unit; the condominium declarations must be very clear where the unit owner’s interest begins, and also where it ends. This post provides a brief overview of the Florida condominium association’s obligation to repair and maintain windows under Florida law.
When drafting condo declarations, careful consideration must be given as to whether the windows in the unit are described as common elements. The legal import in defining the condominium property is significant: the association is responsible for the maintenance of the common elements. See Fla. Stat. 718.113(1). Section 718.108(1)(d), Florida Statutes, defines “common elements” as “the condominium property which is not included within the units.” But this designation is dangerously broad in the context of window repairs—specifically, whether windows are part of the interior or the exterior of the unit. In the absence of such a clear demarcation, windows may still be “common elements,” as windows are arguably not within the individual unit under the statutory definition. Id.
Some declarations may define the exterior of the building as a common element, but designate windows as part of the unit. Some declarations define the common elements as the window frame, but the actual glass to be owned by the individual unit owner. Such internal contradictions often lead to a dispute between owners and the condominium association. When both parties can find language in the declarations to support their positions, the parties may require the Court to resolve the ambiguity. In such cases, the parties would look at prior course of conduct and maybe even the testimony of the developer or the lawyer who drafted the declarations for the intent of ownership responsibility. More thoughtful declarations may assign windows, and other property that serves only one unit, as limited common elements.
The condominium declarations may provide that certain limited common elements be maintained by unit owners who use them. See Fla. Stat. 718.113(1). The prudent association will further define the term “maintenance.” The ultimate question becomes more complex when it is unclear whether maintenance includes the term “repair.” Remember: the declarations will be controlling as to who has the obligation to repair. See Woodside Vill. Condo Ass’n v. Jahren, 806 So.2d 452, 456 (Fla. 2002) (holding that the declarations strictly govern the respective duties and responsibilities between the condo association and the unit owner).
Ultimately, the condominium declarations will govern. To avoid disputes that may arise when repairs are necessary, the declarations should be explicit as to each party’s obligation to repair the property. This may be accomplished by designating windows as limited common elements; describing in detail those who are responsible for the interior and exterior surfaces of the condominium property, and clarifying in writing the financial obligations of each party before major repairs are necessary. At a minimum, the association should create a chart of responsibility to provide guidance as to who is responsible for maintenance and repair.