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What’s a condo owner to do?

On July 2, the Third District Court of Appeal overturned a Division of Florida Land Sales, Condominiums, and Mobile Home declaration over who is responsible for insuring and maintaining association public areas, meaning anything outside one’s unit, such as lanai screen doors.

However, in the same week, Gov. Charlie Crist signed House Bill 601 into law.

That legislation amended previous community association law on condo insurance, reconstruction after disaster, and condominium common expenses, according to David Muller, a Becker & Poliakoff attorney.

The Third District Court of Appeal overturned an administrative decision issued by a state agency, which ruled on a condominium association’s insurance responsibility for items located outside units, according to Katzman Garfinkel partner Donna Berger, who also heads up her law firm’s lobbying arm Community Advocacy Network.

The Division of Florida Land Sales decision, which involved the condominium association of Costa del Sol, held that items, such as Jacuzzis, trellises and elaborate screen enclosures which were purchased and installed by individual unit owners are condominium property and must be insured by the association as a common expense under condo law, according to Berger.

Senior Judge Alan R. Schwartz wrote in the Third District’s decision, that the consequence of the division’s decision was “... the utterly unfair one of making members of the association responsible for insuring property which they do not and cannot use, and from which they derive no benefit-indeed, in which they apparently have no insurable interest which would even permit their maintenance of valid insurance.”

Judge Schwartz went on to say that the division’s distinction between inside and outside property could apply to a barbecue or even a lounge chair on a patio. That makes an association responsible for insuring anything outside the unit walls even though such burden would be illogical, Berger said.

Unlike the division’s Costa del Sol declaratory statement, the Third District Court of Appeal’s decision is binding law in Florida, and sets precedent throughout the state until another appellate court takes up the issue, Berger said.

So, does the court’s opinion conflict in any way with HB 601?

The DCA opinion was based on law from 2006, but it doesn’t necessarily conflict with newly-enrolled legislation, said Katzman Garfinkel attorney John Bibish.

The new law is basically a codification of the Costa Del Sol decision, enabling associations to opt out of certain insurance and maintenance obligations, Bibish said.

Basically, “this is (all) good news to community associations,” Bibish said.

Yeline Goin, a co-director of the Community Association Leadership Lobby, the lobbying arm of Becker & Poliakoff, essentially agrees.

The Costa del Sol appellate decision held that items such as jacuzzis, trellises, and screen enclosures that were purchased, installed and used only by one unit owner are not the association’s insurance responsibility even if located outside of the unit boundaries, Goin said.

“That is the case under the new law (HB 601) as well,” Goin said.

On all policies issued or renewed after January 1, 2009, the association is responsible for insuring all portions of the condominium property as originally installed or replaced. The unit owners are responsible for insuring improvements or additions to the condominium property that benefit fewer than all unit owners.

Therefore, under the new law, if an owner installs a jacuzzi on the balcony or encloses the balcony, those additions are the unit owner’s insurance responsibility, which is consistent with the Costa del Sol decision, Goin said.

Becker & Poliakoff law partner Tamela Wiseman, Naples’ former vice mayor until her move to Sarasota, agreed.

“I don’t think it invalidates or directly conflicts with the new law,” Wiseman said.

One thing all of the attorneys quoted agree on and were amused by: the tone of Schwart’z opinion.

Berger called it “scathing.” So did Wiseman.

“I loved the sarcasm of that (district court of appeal) opinion,” Wiseman said. It also demonstrates the contempt most judges have for condo disputes, Wiseman said.