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  1. #1
    Join Date
    Jun 2012
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    5

    Default Opt-Out Vote Made Owners Responsible for More Repairs Than the Board Represented

    My question involves a condominium located in the State of: Florida.
    Was this a legal “opt-out” vote so that association does not have to pay for water damage to wallboard from a tropical storm?

    Our annual condo meeting was held on Oct. 1, 2011. One of the items we were asked to vote on was item number 4. which is below:

    4. Shall the Association opt out of the provisions of section 718.111 (11)(j), Florida Statutes, and allocate repair and reconstruction expenses in the manner provided in the Declaration of Condominium?

    The Association also included an attachment to explain what opting out of this provision would mean. The attachment reads:

    Item #4 on the proxy form is a very important vote. Since our buildings were was constructed in the early 1980s, the Association has never paid to repair or replace windows and sliding glass doors. Our declarations of condominium, in section 7.2, make it perfectly clear that these items are supposed to be the unit owner’s responsibility. Unfortunately, in 2008, the Florida Legislature enacted section 718.111 (11)(j), Florida Statutes, which can be misinterpreted in a way that requires the Association pay for things such as windows and sliding glass doors as a common expense.

    The Association’s legal counsel has recommended that we “opt-out” of this new law under 718.111(11)(k). If a majority of owners vote to opt out, the Association can eliminate uncertainty and guard against future legal disputes about the cost of repairs. A “YES” vote means that we keep the status quo and unit owners are responsible for their own windows and sliding glass doors. The majority of the Board of Directors strongly recommends a “Yes” vote on item #4.

    The vote was passed by the members based on this written explanation. Now the condo association is saying that members are responsible for the repair and replacement of wallboard that was damaged during a recent tropical storm. I feel that we were misled by our Board of Directors. 718.111(11)(k) makes no mention of windows and doors. I feel that we were told that we were only voting on windows and door repair/replacement responsibility. We were not informed that a yes vote would make us responsible for wallboard damage/replacement.

    Comments, please. Thank you.

  2. #2
    Join Date
    Mar 2008
    Posts
    1,995

    Default Re: Opt-Out Vote Legal

    I lived in and rented out condos, and we are talking INTERIOR wallboards??.

    In most of the CC&R's of the condos I owned, the unit owner is responsible for all items in the interior of the condo, up to and including the interior walls. The space BETWEEN to walls is HOA responsibility though, meaning if a pipe bursted inside the walls, the HOA would have to repair and also repair related damages including wallboards.

    If your CC&R reads anything like the ones I had, while the HOA is responsible for doors and windows, the unit owner is reponsible for wallboards. Indeed, the exterior windows at a condo complex I rented out were all replaced at HOA expense at one point, i.e. the entire building, but I have heard of unit owners repairing damaged interior wallboards.

    Now, when I say windows were replaced at HOA expense, all that it means is the HOA pays for it, and then allocated it to all the owners on a prorata basis, meaning that you still have to pay it, not that it came for free. I don't recall if it was a one time special assessment or increased monthly carrying costs.

    Bottomline is, I don't see windows related to interior wallboards.

  3. #3
    Join Date
    Sep 2005
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    Behind a Desk
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    98,846

    Default Re: Opt-Out Vote Made Owners Responsible for More Repairs Than the Board Represented

    Section 718(11)(j) provides,
    Quote Quoting Florida Statutes, Sec. 711(11)(j)
    (j) Any portion of the condominium property that must be insured by the association against property loss pursuant to paragraph (f) which is damaged shall be reconstructed, repaired, or replaced as necessary by the association as a common expense. All property insurance deductibles, uninsured losses, and other damages in excess of property insurance coverage under the property insurance policies maintained by the association are a common expense of the condominium, except that:

    1. 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 such damage is caused by intentional conduct, negligence, or failure to comply with the terms of the declaration or the rules of the association by a unit owner, the members of his or her family, unit occupants, tenants, guests, or invitees, without compromise of the subrogation rights of the insurer.

    2. The provisions of subparagraph 1. regarding the financial responsibility of a unit owner for the costs of repairing or replacing other portions of the condominium property also apply to the costs of repair or replacement of personal property of other unit owners or the association, as well as other property, whether real or personal, which the unit owners are required to insure.

    3. To the extent the cost of repair or reconstruction for which the unit owner is responsible under this paragraph is reimbursed to the association by insurance proceeds, and the association has collected the cost of such repair or reconstruction from the unit owner, the association shall reimburse the unit owner without the waiver of any rights of subrogation.

    4. The association is not obligated to pay for reconstruction or repairs of property losses as a common expense if the property losses were known or should have been known to a unit owner and were not reported to the association until after the insurance claim of the association for that property was settled or resolved with finality, or denied because it was untimely filed.

    Section 711(11)(k) provides,
    Quote Quoting Florida Statutes, Sec. 711(11)(k)
    (k) An association may, upon the approval of a majority of the total voting interests in the association, opt out of the provisions of paragraph (j) for the allocation of repair or reconstruction expenses and allocate repair or reconstruction expenses in the manner provided in the declaration as originally recorded or as amended. Such vote may be approved by the voting interests of the association without regard to any mortgagee consent requirements.
    It sounds like what you are stating is that your unit suffered some interior water damage during a recent storm, and that the condo association is taking the position that as the owners voted to opt out of subsection (j) the duty to pay for repair of that damage is yours under the terms of the declaration as originally recorded.

    You have provided the association's explanation for why it was proposing the opt-out vote, but you have not provided the text of the opt-out provision that you and other owners voted to approve. Can you share that language?

  4. #4
    Join Date
    Jun 2012
    Posts
    5

    Default Re: Opt-Out Vote Made Owners Responsible for More Repairs Than the Board Represented

    The text that we voted to approve is #4. We were never given the complete language of the Florida Statute. I will include the complete language at the bottom of my reply.

    4. Shall the Association opt out of the provisions of section 718.111 (11)(j), Florida Statutes, and allocate repair and reconstruction expenses in the manner provided in the Declaration of Condominium?

    By voting to opt out of the Florida Statutes 718.11 (11) (j), we reverted back to the provision in the Declaration of Condominium which states that invididual owners shall be responsible for "All doors within the unit including those which open to the unit from an entranceway or the outside, interior walls and partitions, wall decorations and built-in furniture, windows, and window apparatus and glass, sliding glass doors, screens and screen supports."

    In the past, the condominium association has always paid to repair my interior wallboard which has been damaged a minimum of 6 times in heavy storms. When the vote was taken to opt-out, as you can see in the explanation that was provided to us, we thought we were just voting to re-affirm that individual unit owners would be responsible for their own windows and doors, which has always been the case. By opting out of the Florida statute, all owners are now responsible for the repair of their interior wallboard. This was not explained to us prior to the vote.

    Here is the text of 718.111(2)(f) that I was able to locate which we voted to opt out of:

    According to Section 718.111(11) (f) Florida Statutes, the Association’s policy of hazard insurance covers “all portions of the condominium property as originally installed or replacement of like kind and quality, in accordance with the original plans and specifications” EXCEPT “all 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, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing.”

    This means that the Association insures everything except those items expressly excluded by the Statute, including but not limited to all drywall and a/c components inside and outside the Units.

    Thus, in the typical leak into the Unit scenario the Association’s insurance covers ALL drywall (boundary, ceiling and partition) in the Unit for losses caused by a covered hazard. The Association’s insurance also covers all other damage except that caused to the excluded items listed above.

    - - - Updated - - -

    The text that we voted to approve is #4. We were never given the complete language of the Florida Statute. I will include the complete language at the bottom of my reply.

    4. Shall the Association opt out of the provisions of section 718.111 (11)(j), Florida Statutes, and allocate repair and reconstruction expenses in the manner provided in the Declaration of Condominium?

    By voting to opt out of the Florida Statutes 718.11 (11) (j), we reverted back to the provision in the Declaration of Condominium which states that invididual owners shall be responsible for "All doors within the unit including those which open to the unit from an entranceway or the outside, interior walls and partitions, wall decorations and built-in furniture, windows, and window apparatus and glass, sliding glass doors, screens and screen supports."

    In the past, the condominium association has always paid to repair my interior wallboard which has been damaged a minimum of 6 times in heavy storms. When the vote was taken to opt-out, as you can see in the explanation that was provided to us, we thought we were just voting to re-affirm that individual unit owners would be responsible for their own windows and doors, which has always been the case. By opting out of the Florida statute, all owners are now responsible for the repair of their interior wallboard. This was not explained to us prior to the vote.

    Here is the text of 718.111(2)(f) that I was able to locate which we voted to opt out of:

    According to Section 718.111(11) (f) Florida Statutes, the Association’s policy of hazard insurance covers “all portions of the condominium property as originally installed or replacement of like kind and quality, in accordance with the original plans and specifications” EXCEPT “all 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, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing.”

    This means that the Association insures everything except those items expressly excluded by the Statute, including but not limited to all drywall and a/c components inside and outside the Units.

    Thus, in the typical leak into the Unit scenario the Association’s insurance covers ALL drywall (boundary, ceiling and partition) in the Unit for losses caused by a covered hazard. The Association’s insurance also covers all other damage except that caused to the excluded items listed above.

  5. #5
    Join Date
    Mar 2008
    Posts
    1,995

    Default Re: Opt-Out Vote Made Owners Responsible for More Repairs Than the Board Represented

    Quote Quoting bangs111
    View Post
    .

    "All doors within the unit including those which open to the unit from an entranceway or the outside, interior walls and partitions, wall decorations and built-in furniture, windows, and window apparatus and glass, sliding glass doors, screens and screen supports." .
    Unless I'm reading it wrong, doesn't this go into opting out of interior walls. meaning wallboards??

  6. #6
    Join Date
    Jun 2012
    Posts
    5

    Default Re: Opt-Out Vote Made Owners Responsible for More Repairs Than the Board Represented

    Yes, it does goe into opting out of wallboards. My point is that we were never told that we were never given the language of the statute. The explanation of the statute we were given only referred to out vote allowing us to opt out of the condo association opting out of maintaining windows and doors. Windows and doors are not part of the statute. Thus, I feel a re-vote is warraned as we were mislead. Thoughts anyone?

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