Who Is Responsible For Termites In A Condo - T-Tees - Your Answers Await, Life's Questions Unraveled

Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, civil litigation, estate planning and commercial transactions.

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Q: Our A/C and water heater are outside of the unit, located in the hallway. The door to the A/C and heater has termites. Who is responsible for the damaged door and how about the termites?

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— B.G., Stuart

A: Assuming this is not covered by insurance, the answer is just in the declaration. The association maintains/repairs/replaces property under the declaration to be maintained/repaired/replaced by the association and vice versa.

The door could be a limited common element, depending on the documents, and the documents may make the owner responsible. Or it could be the association. Need to analyze the declaration.

While living in South Florida has many benefits (ever go to the beach on Christmas day?), having a year-round subtropical climate has some drawbacks, including insect infestations. The palmetto bug, fire ants and, yes, termites, are an unfortunate byproduct of our warm weather.

For owners of condominiums, the big question when it comes to pests is whether the owner or the association is responsible. In short, if the termites are found in an association’s common elements, such as the roof, shared recreation rooms, etc., the association will likely be responsible for the extermination as a result of its duty to maintain the common elements.

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In your particular situation, I cannot tell you who is responsible without reading your association’s declaration. The declaration is the governing document for a condominium and lays out all the duties for owners as well as for the association itself.

As previously mentioned, the association is responsible for maintenance, repair and replacement of common elements. What a particular association considers to be common elements will be defined in its declaration.

Generally, termite infestations will occur within the walls and other areas that are not readily accessible. As such, termite damage may go unnoticed until the walls or wood have been substantially damaged. In your case, it sounds like you may have caught the problem before too much damage has occurred.

If this was a situation where you located the termites in the hallway, it might be clearer in regard to whether we are talking about a common element. Because the termites were found in an area that may be under your control, the answer might not be so simple.

So, as stated above, you really need to check your declaration to see who is responsible for the A/C closet.

One final thought is that even if the A/C closet is considered your property, if you find that the original source of the termites was from a common element, you may be able to argue the association is responsible for causing damage to your property. You can also try to submit a claim to your homeowner’s insurance as they may provide the answer to you when they perform their coverage investigation.

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Q: Can a condominium pass rules regulating smoking in the units?

—A.T., Hutchinson Island

A: The Florida Clean Air Act applies to all types of tobacco smoke and is generally accepted to apply to both condominium and homeowners’ association’s indoor common elements. In addition, community associations also have the power to create smoking bans even for outdoor common elements not specifically covered by the Clean Air Act, such as pools, tennis courts, dog walks and playgrounds.

Because a board’s rule-making authority is derived from the governing documents, such rules are generally enforceable, provided they are “reasonable.” These restrictions on smoking can even be extended to limited common elements, such as balconies, by a proper vote of the board provided that the governing documents provide such rule-making authority.

Banning smoking within the units is far more complicated because, unlike common elements and limited common elements over which the association has certain ownership rights (as defined the association’s declaration), the units themselves are owned by members.

While the majority of declarations have included “nuisance” clauses that allow associations to regulate and prohibit nuisances, such clauses rarely specifically reference smoking as a nuisance. Because of this, it is unlikely that a court or arbitrator would stretch a nuisance clause to cover smoking if it is not expressly included in the clause.

Therefore, if an association wishes to ban smoking within the units, the governing documents must be amended to include this specific prohibition within the nuisance clause. Although amendment procedures may vary from association to association, the declarations need to be reviewed by an experienced attorney to determine the proper procedure for your association and whether such nuisance rules can be incorporated into your existing documents.

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Harris B. Katz, Esq., is Managing Partner, Boca Raton of the Law Firm Goede, Adamczyk, DeBoest & Cross, PLLC. Visit our website, www.gadclaw.com, or to ask questions about your issues for future columns, send your inquiry to: [email protected]. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.