Article Courtesy of the Miami Herald

By DONNA GEHRKE-WHITE
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 premium's deductible.

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.

WASTING TIME

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 cover cooperatives.)

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 elements.''

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,'' Marino adds.

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 responsible.

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 help.

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.