Florida McLlenan v. Cypress Chase North Condominium (4th DCA 2024): Water Damage Repair Duty

Quick Answer

In McLlenan v. Cypress Chase North Condominium No. 4 Association, Inc., No. 4D2023-1269 (Fla. 4th DCA June 5, 2024), Florida's Fourth District Court of Appeal held that a condominium association "has the duty to repair the common elements no matter the cause of damage." A leak that started in an upstairs unit did not excuse the association from repairing common elements damaged by the water.

The court reversed a summary judgment for the association. Under this declaration, the association could seek the repair cost from a negligent unit owner, but that did not remove its duty to repair first.

At a Glance

The Dispute

Randy McLlenan owns a unit at Cypress Chase, and Kayla McLlenan and Charles Williams live there. In August 2021 they noticed a water leak and mold in the unit and told the association. The association said repair was the owners' responsibility because unit owners are responsible for their own units, including plumbing.

More leaks appeared. The association first did nothing, then hired a contractor to remediate the kitchen only. According to the owners, the contractor tore out most of the kitchen without permission, including walls between units. In November 2021, sewage water poured into the bathroom and broke through the ceiling light fixtures. The association's property manager was told and the leak stopped that day. The parties agreed the cause was a blockage or leak in the upstairs unit's bathtub. Apart from the kitchen tear-out, the association did not remediate the damage, and mold spread.

The owners sued for breach of the declaration, negligence, and violation of the Condominium Act. The association moved for summary judgment, arguing that because the leak did not come from a common element, it had no duty to repair under the declaration or the Act. The trial court agreed and granted summary judgment on every count.

What the Court Held

The declaration

The declaration defined units by their unfinished interior surfaces: the upper boundary is the unfinished lower surface of the ceiling, and the perimeter boundaries are the unfinished interior of the walls. It defined common elements as the parts of the condominium property not in the units. Section 7.2 said the association performs all maintenance, repairs and replacements of the common elements and charges the cost as a common expense, "except to the extent arising from or necessitated by the negligence, misuse or neglect of specific Unit Owners, in which case such cost and expense shall be paid solely by such Unit Owners."

The association argued section 7.2 yielded to section 7.1, which makes owners responsible for repairs to their units, including plumbing. The court said section 7.1 covers only repairs "within the owner's unit or to the unit's Limited Common Elements." Because of the unit boundaries, the space between the unfinished ceiling of Randy's unit and the upstairs unit's floor, and the space between his walls and the neighbors' walls, are common elements. Those are "the association's responsibility to repair."

The cause of damage does not change the duty

The court said the declaration "makes no exception for what causes the damage." If a single owner's negligence damages a common element, the association may "seek the repair expense from the negligent owner, but it does not excuse the association from its duty to repair the damaged common element."

The statute

Section 718.113(1) (2021) states: "[m]aintenance of the common elements is the responsibility of the association." The court called it "clear and unambiguous" and said it "does not provide any exception for damage to the common elements caused by a specific unit owner."

Kitchen claim and remand

The court found that the trial court should not have granted summary judgment on the ground that kitchen damage was not pleaded, because the association never raised that ground with particularity in its motion. It also said the owners' negligence allegations were enough to raise a separate duty to protect them from hazardous conditions and repeated leaks. Disputed facts remain, such as whether the damage was to common elements and "whether and to what extent the association's failure to remediate damage to the common elements caused damage to Randy's unit."

Limits

The court did not decide that the association is liable. It held only that the association had a duty to repair damaged common elements regardless of cause, and sent the claims back. The result rests on this declaration's unit boundaries and on section 718.113(1) as it read in 2021. Other declarations may define unit boundaries and repair duties differently. Insurance coverage was not part of the opinion.

Why It Matters for Associations

• Unit boundaries drive the answer. Under this declaration, the cavity between an upstairs floor and a downstairs ceiling was a common element, so the repair duty sat with the association.
• "Not our fault" is not a defense to the duty to repair. The association may be able to recover from a negligent owner, but our reading is that it should not refuse to repair first.
• Act when you are told. The facts show months of reports, partial action and spreading mold. The court sent the case back for a fact finder to sort out causation and damages.
• Hired contractors can create separate exposure. The owners alleged the association's own contractor damaged the kitchen. The court treated the negligence theory as still alive.
• Document the chargeback path. The declaration let the association assess a negligent owner. Our reading is that boards should check their own document for that clause and follow its procedure.

Related Florida Law

• Chapter 718: the Condominium Act
• Section 718.111: official records, insurance and reporting
• New Horizons v. Harding (3d DCA 2022): business judgment rule
• Section 718.116: assessments and liens
• Florida HOA laws complete guide

Board Checklist

• Read your declaration's unit boundary definitions and the list of common and limited common elements.
• Find the repair clause and any exception for owner negligence, and note how costs are charged back.
• Log every leak report with date, time and response, and keep photos.
• Respond to water intrusion quickly and decide who will repair common elements and who will coordinate.
• If an owner may be at fault, follow the declaration's chargeback steps after, not instead of, the repair.
• Check contractor scopes in writing before any tear-out inside a unit, and get owner permission.
• Notify the insurer as your policy requires and confirm coverage questions with counsel.

Frequently Asked Questions

What did McLlenan v. Cypress Chase decide?

That the association had a duty to repair damaged common elements even though the leak started in an upstairs unit, and that summary judgment for the association was wrong.

Does the association have to repair the inside of my unit?

The case does not say that. It concerned common elements, which under this declaration included the spaces between the unfinished unit surfaces. What counts as a unit or a common element depends on the declaration.

Can the association charge the owner who caused the leak?

Under this declaration, yes: the cost could be charged to a negligent owner. The court said that does not excuse the duty to repair.

What does section 718.113(1) say?

The 2021 text quoted by the court says: "[m]aintenance of the common elements is the responsibility of the association."

Is the association now liable for the mold?

Not decided. The court sent the claims back because factual questions remain, including what was common element damage and whether the delay caused further harm.

Does this apply to HOAs?

It interpreted a condominium declaration and Chapter 718. HOA repair duties depend on the covenants and Chapter 720.

Where This Comes From

We read the full text of the Fourth District's opinion in No. 4D2023-1269 (June 5, 2024). We did not verify a reporter citation, rehearing or later history, or the current text of section 718.113. The opinion is at Justia.

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Legal disclaimer: This article is general information, not legal advice. Laws change and associations differ. Confirm the current statute text and how it applies to your governing documents with a licensed Florida attorney before acting.