Assessment Obligations and Duty to Repair

By Michael J. Gelfand, Esq. / Published November 2024

ASSESSMENTS: PUSHING EARTHLY LIMITS—DEATH DOES NOT END ASSESSMENT OBLIGATIONS?

     It may seem impolite to discuss, but if a parcel or unit owner in a Florida community association dies and assessments are unpaid, do the other owners have to make up the difference?

     Though they did not like the thought, a number of Florida associations have assumed that everyone else had to chip in and pay. In this economy, when neighbors see the decedent’s property sold for a hefty profit, they start asking questions. As with many issues in associations, the initial thoughts, whether assisted by “Judge Google” or their own experience, may not be helpful. By the way, “decedent” is a term used by the Florida legislature for someone who has died.

     We have all seen that the route to recovery of monies usually involves deadlines. There are special time limits when an owner dies. Do you know what these time limits are? Once your claim is filed, what else must an association do to preserve their claim?

     Deadlines were the subject of a recent Florida appellate court decision with implications for Florida community associations. Fields, claiming she was owed money for child support from Ford at the time of Ford’s death, filed a claim against Ford’s Estate in the Estate’s probate proceedings. The Estate’s personal representative objected to Fields’ claim, asserting that Fields failed to file a timely claim. The details can be found in Fields v. Estate of Ford, 49 Fla. L. Weekly D 1240 (Fla. 6th DCA, June 7, 2024).

     Usually an estate’s personal representative must provide a notice to a decedent’s creditors of the formation of an estate and provide the creditors notice of deadlines, including a three-month deadline for most money claims.

     But there is another rule when the personal representative fails to provide the three-month deadline notice. Because the personal representative neglected to send Fields this notice, Fields’ claim, although filed more than three months after notice to other creditors but within two years of death, was deemed timely filed.

     The personal representative then objected to the claim within 30 days of Field’s claim. Therefore, in the ping-pong exchange of legal papers, the objection was also timely filed. Nonetheless, the probate court forever barred Fields’ claim because she did not also file an independent action against the personal representative.

     The Florida appellate court agreed with the decision of the probate court. The court explained that Florida’s Probate Code, Section 733.705(5), Fla. Stat. (2022), provides that once an objection to a claim is filed against an estate, the claimant has 30 days from the date of service of an objection to bring a separate action on the claim. The statute specifically states that “[n]o action or proceeding on the claim may be brought against the personal representative after the time limited above, and the claim is barred without court order.”

     Under the statute, Fields had 30 days from the date when she was served with the objection to her claim to file an independent lawsuit against the personal representative. Because Fields never filed an independent action against the personal representative, her claim was forever barred.

     This decision reinforces that death of a Florida decedent does not automatically bar claims, and the decision emphasizes the importance of paying attention to probate deadlines. If your Florida association seeks to make a claim after death, make certain that the claim is filed on time! And just as important, if an objection is made to the claim, know what you must do next, and when, in order to preserve the claim.

     Florida community associations may also have alternative collection routes. If they have a lien against the decedent’s parcel or unit, that might avoid some of the shorter deadlines and provide a different route. Concerning post death assessments, those also may be collectable because title to Florida property usually automatically transfers to heirs and devisees at the decedent’s death.

UPSTAIRS-DOWNSTAIRS: WHATEVER THE CAUSE OF DAMAGE, THE CONDOMINIUM ASSOCIATION’S DUTY TO REPAIR COMMON ELEMENTS

     In a multi-story building water sometimes leaks from one floor to the next. The causes may be a leaky toilet, a cracked bathtub, a rusting shower pan, or a broken sink, just to name a few of the culprits.

     If the negligence of the upstairs unit owner causes the leak, does a Florida community association have to repair the damage to the downstairs unit’s walls and floors? If the walls and floor are common elements, then the answer is, “yes”!

     Take care when considering this type of problem. The references to unit owners, upstairs and downstairs, can be confusing on a first read. However, after you try alternative terms, you will understand and likely use the same upstairs/downstairs terminology when (not if!) there is water intrusion in your building.

Photo by iStockphoto.com/olm26250

     Recently a Florida appellate court ruled that a condominium association has a duty to repair all damage to common elements even when the damage resulted from a leak in an upstairs unit’s bathtub. In McLlenan v. Cypress Chase North Condominium No. 4 Association, Inc., 49 Fla. L. Weekly D 1197 (Fla. 4th DCA, June 5, 2024), a condominium unit owner notified the association when he noticed a water leak and mold. The association’s contractor tore out most of the kitchen, including the walls, but did not do anything to repair the kitchen.

     Several months later, sewage water poured into the owner’s bathroom, caused by the upstairs owner’s bathtub. The leak was stopped immediately, but the association did not repair any of the damage to the downstairs unit and mold continued to spread.

     The owner sued the association for breach of contract, negligence, and violation of the Condominium Act. The trial court granted a summary judgment for the association, explaining that the association did not have a duty to repair damage to the downstairs unit where the damage was caused by a leak from the upstairs unit and not caused by a common element, reasoning that the leak was caused by the upstairs unit’s plumbing, which was that upstairs owner’s responsibility.

     The Florida appellate court disagreed and reversed the decision of the trial court. The appellate court noted that the declaration provided that “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.”

     The court determined that common elements included the space between the unfinished lower surface of the downstairs ceiling and unfinished upper surface of the upstairs unit’s floor, as well as the space between the unfinished interior of the owner’s boundary walls and those of his neighbors. The court further explained that common elements are the association’s responsibility to repair. There is no exception in the declaration of condominium for what causes the damage. Therefore, the association had a duty to repair the common elements when water leaked into the owner’s unit from the upstairs unit.

     In other words, when a common element is damaged, the association has to repair the common element, regardless of what caused the damage. As the court stated, the cause of the leak is irrelevant to the association’s duty to repair!

     Note that the court was not faced with the liability of the upstairs owner. The downstairs owner and the association may have claims against the upstairs owner if the upstairs owner was negligent or intended to cause damage. Also, this decision prompts a reminder to confirm the association’s insurance coverages, policies for responding to water intrusion, and rules regulating securing an unoccupied unit.

Michael J. Gelfand, Esq.

Senior Partner, Gelfand & Arpe, P.A.

     Michael J. Gelfand, Esq., the senior partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar board-certified lawyer in condominium and planned development law and in real estate law, a certified circuit and county civil court mediator, a homeowners’ association mediator, an arbitrator, and parliamentarian. He is a past chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at ga@gelfandarpe.com or 561-655-6224.