Courtesy of the Miami Herald
Published December 11, 2005
You'd think it would be an easy matter: Wilma
shattered your condo windows and your association's insurance should pay
to replace them.
After all, a recent state law requires condominium
associations to have insurance to cover such damage.
Instead, some condo associations are telling owners
they have to pay for their own new windows and patio doors.
They point to a provision in some condos' documents
that holds individual owners responsible for their windows and patio
doors. The clause is common in documents for low- or mid-rise condominiums
built since the 1970s -- older buildings that Wilma hit the hardest. (In
most high-rises and newer buildings, the documents make the association
responsible for all exterior doors and windows.)
Adding to the problem: Many insurance adjustors are
telling condo owners that their individual policies won't cover the window
or door damage.
So far, state agencies have given mixed signals over
how the 2004 law should be interpreted.
The Florida Division of Land Sales, Condos and
Mobile Homes in the Department of Business and Professional Regulation (DBPR)
maintains that generally the associations should pay for any damaged
windows -- even if the cost doesn't rise to the level of the insurance
The association should pay out of its reserves,
general fund or by enacting a special assessment ''rather than passing the
expense to the individual unit owners whose units are damaged,'' DBPR
spokeswoman Kristen A. Ploska said in an e-mail.
Meanwhile, the state's condo ombudsman, Dr. Virgil
Rizzo, agrees with many association attorneys who say the new insurance
law doesn't mean an individual can't be held responsible for damage
after a casualty if that's what their documents say.
''It may seem wrong or inequitable, but it is in
your [documents],'' Rizzo says.
However, he recommends that associations pay for the
window damage -- and amend their documents.
Otherwise, the association may waste time and money
arguing over the issue with home owners, he says. ''You want to live in
peace and harmony,'' he adds.
It's also a safety issue: Associations need to
ensure that all the windows will protect the entire building, says
engineer John Pistorino, who helped create South Florida's tougher
building codes after 1992's Hurricane Andrew.
If one owner installs windows incorrectly, it
endangers the entire floor during another hurricane, he says.
''As we saw in Wilma, if one unit gets breached,
then it affects all the units on a particular floor,'' says Pistorino,
adding he saw hallway walls collapse after a condo unit was invaded by
Wilma's high winds.
The Legislature will attempt to resolve the issue at
the session that begins in March, says state Rep. Julio Robaina, R-Miami,
who has pushed for legislation on community association issues.
A law that took effect in January 2004 requires
condo associations to insure everything that makes up the original
contents of the buildings, from ceilings to walls. (The new law does not
Keri Rayborn, an insurance consultant and lobbyist
who helped write the law, says the intent was that associations would make
the repairs for all items that they were required to insure, including
windows and doors, after casualties like a hurricane.
But last year, the long string of hurricanes began
-- and so did the controversy over the windows and doors.
Some boards found that their association's
deductibles were so high that the board couldn't make an insurance claim.
They told owners to repair their own broken windows or doors.
Some boards also discovered their association
documents required them to first use insurance money to pay for common
elements such as roofs and air conditioning units.
By the time those were paid for, there wasn't money
left to fix windows in individual units.
Some associations then told unit owners that their
condo documents required them to pay for their own repairs.
'The boards' hands are tied,'' says attorney Donna
D. Berger, who is executive director of the Community Association
Leadership Lobby (CALL), started by her law firm, Becker & Poliakoff.
REQUIRED TO DO
''Boards are not making arbitrary decisions. This is
what they are required to do,'' she adds. ``It all depends on what the
governing documents provide regarding uninsured losses and whether or not
the windows constitute a part of the unit or a part of the common
Insurance adjustors have complained about the
different interpretations of the new law and have asked online for advice
on how to handle individual claims.
A spokesman for the state's leading private insurer,
State Farm, said the company is aware of the confusion. The company may
elect to pay for the broken windows of individual policy holders,
depending on the condominium's bylaws, says spokesman John Pisula.
''We go out and look at each one on an individual
basis,'' he says.
Meanwhile, some unit owners have sought help from
the DBPR to make their associations pay for their window and door damage.
Out of its Fort Lauderdale field office, the DBPR
did ask two Palm Beach County condominium associations to replace broken
windows and patio doors from last year's hurricanes.
The 256-unit Water Glades condominium complex in
Riviera Beach agreed to repair damaged window and door frames of a unit
owner who complained to the state when the board first refused.
Now the association is sending letters, urging
owners to vote for an amendment to their condo documents that will make
the association responsible for the frames. (The association already is
responsible for the glass in the windows and doors.)
''We have to take responsibility,'' says Ned
Fleming, the complex's general manager.
The other, Regal Palms Condominium Association in
Palm Springs, denies that the complaining owner suffered damage during
last year's hurricanes. The owner, Marie Naseiro, has a nonpublished
telephone number and could not be reached for comment.
Nicholas Marino, the association president, says
that legal documents for the 324-unit complex hold individual owners
responsible for their own windows and doors. Naseiro, he says, wants to
install impact-resistant windows and doors at her unit.
''She can change her windows at her expense,''
Now, the ongoing confusion has carried over to those
trying to rebuild from Wilma.
In Aventura, about 20 of 554 units at Portsview at
the Waterways suffered window and patio door damage, but the board doesn't
know whether to pay for repairs since the documents hold the unit owners
WAITING TO HEAR
For now, the board is waiting to hear how much of an
insurance settlement the community will receive for Wilma's destruction.
''It's a controversial issue that needs to be
resolved [by the state],'' adds board director Gilbert Schwartz.
In Margate, Mildred Moskovitz is still waiting for
She was first told the board of the Palm Lakes
condominium complex would pay for her broken glass. Then the board said
she and other unit owners were responsible for their own damage.
But when Moskovitz tried to claim her patio door
damage on her individual unit's insurance policy, her adjustor told her it
was the association's responsibility.
Last week, Moskovitz finally got good news: After
receiving legal advice, the board agreed to pay for the damage.
''That's a relief,'' Moskovitz says.
Still, her son advises, don't take any chances.
He's urging her to get her own repair estimate -- in
case the association doesn't come through with the repairs.