FINAL ARBITRATION ORDER. Comes now, the undersigned arbitrator, and enters this final order as follows:

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Los Prados Condominium Association, Inc., Petitioner, v. Case No Jeffrey S. Lemley, Respondent. / FINAL ARBITRATION ORDER Comes now, the undersigned arbitrator, and enters this final order as follows: This proceeding was filed for arbitration by the association on January 22, The petition alleged that the respondent s unit had become infested with mold, and the association requested emergency relief. An evidentiary hearing was conducted on February 28, 2003, and an order providing interim relief was entered on March 11, The order found that the respondent had been aware of the mold infestation since July or August of 2002 and had declined to take any action to remediate the problem. The order granting temporary relief first permitted the respondent to take charge and hire mold remediation experts to address the problem, failing which the association was permitted entry into the unit to fix the problem. Ultimately, the respondent failed to take any action to remedy the situation, and the association hired certain experts to remediate and reconstruct the unit. On February 27, 2004, the association filed a status report indicating that the work had been completed. 1

2 The association on March 29, 2004 filed its notice of filing of affidavit of costs by which it seeks reimbursement of certain costs incurred by the association in the amount of $17, These costs, and the liability therefor, were the subject of a final evidentiary hearing that was conducted upon due notice on April 29, 2004, from 1:30 p.m. to approximately 3:30 p.m. The arbitrator attended the final hearing via telephone conference. The respondent joined the hearing from Beaver, Pennsylvania. Counsel for the association and the association witnesses participated from Clearwater, Florida. The parties each filed post-hearing memoranda by May 12, 2004, which have been duly considered. At the more recent evidentiary hearing held on April 29, 2004, the association called 4 witnesses including Mr. Lemley. For his part, Mr. Lemley called no witnesses and filed no witness or exhibit list in advance of the hearing as required by prior order of the arbitrator. 1 Ms. Gillen, the manager, testified on behalf of the association that an owner who was passing by the respondent s unit in April 2002 noticed a swarm of terminates trying to gain access to Mr. Lemley s unit, and that she subsequently wrote 2 letters to the respondent who resided in Beaver, Pennsylvania, asking for a key to the unit for inspection purposes. No response was received from these letters sent certified mail and signed for by the respondent in April and July She also testified that she telephoned Mr. Lemley and that he promised to send a key that was never received. A third letter was sent on July 24 th, but no certified mail receipt was ever returned to the association. At the time when the association was considering hiring a locksmith to gain access to the unit, Mr. 1 The record shows that Mr. Lemley also failed to file any answer in this proceeding or any other document over the course of this proceeding. 2

3 Lemley s father was observed on the premises, and he allowed access to the unit on July 26 th. At that time, the unit was inspected and numerous photographs were taken of the interior of the unit. These photographs were admitted into evidence at both hearings conducted in this proceeding. A letter summarizing the results of the inspection along with copies of the interior photographs were sent to Mr. Lemley by letter dated August 4, The letter describes the condition of the unit and requests that Mr. Lemley take immediate action to address the mold condition. Mr. Lemley received the letter of August 4, 2002, but never responded. In the meantime, the association consulted with various professionals to set up the cleaning and restoration of the unit. Counsel for the association sent a final letter to the respondent dated January 2, 2003, which was not responded to by the respondent. The association then instituted this action. Ms. Gillen further testified that she was familiar with the maintenance history and practices followed by the board. The board meets regularly with its manager to discuss and prioritize maintenance projects. The building containing Mr. Lemley s unit is 20 years old as was the roof on the building in the summer of The witness was only aware of one leak in the roof prior to the time it was replaced in the summer of Mr. Treick, the current president, spends most of his time at the condominium and has been living there for the past 12 years. He testified that during the past 12 years, there have been no permanent residents in the respondent s unit but only sporadic visitors. Mr. Treick testified that the respondent over the course of his absence from the unit has not designated any local contact person for the association to contact in the event of a maintenance problem. 3

4 According to Mr. Treick, there was a leak in the roof of the building years ago which was promptly fixed when it was called to the attention of the association, and there was a leak in the roof in the summer of 2002 shortly before the roof on the building was replaced as part of a routine maintenance schedule in October or November of He testified that the board had a routine and continuous maintenance schedule and met regularly to discuss these types of issues. Mr. Lemley has owned the unit since 1982 or He resided in the unit on a full time basis until 1987 when he moved to Beaver, Pennsylvania. He admitted that no one has occupied the unit on a permanent basis since 1987, but testified that various family members have inspected the unit and occupied the unit for up to 2 weeks at a time with regularity since On cross-examination, he indicated that visits to the unit by his family may have been as infrequent as three times per year for some years. He stated that he was actually physically present in the unit last in July 2002 and has not inspected the unit or hired anyone to inspect it since that time. He testified that he no longer has a key to the unit, having given it to his father some years earlier, and that he plans to sell the unit. Based on the testimony presented, and considering the demeanor of the various witnesses, the arbitrator finds that the association was not shown to be negligent in the roof leak that precipitated water intrusion into Mr. Lemey s unit. The association through its manager and board conducted routine maintenance and responded in a timely manner to maintenance problems as they developed. The board met, formulated plans, and hired contractors and experts to examine potential problems and remedy the problems. Based on the history of the roof over the course of the past 15 years, in which only one leak was reported, the association could not have 4

5 foreseen or anticipated that the roof would begin to leak due to heavy rainfalls in the summer of 2002, and the association is not shown to have breached its duty to maintain the common elements in a satisfactory manner. The arbitration cases that have examined similar disputes instruct that in order for the owner to recover under these circumstances, the association must be shown to have been negligent, with such negligence causing the damage complained of. In Hallock v. Royal Hawaiian Club Condominium Association, Inc., Arb. Case No , Final Order (January 27, 1995), the owners sued the association seeking money damages for a termite infestation in the unit. The arbitrator found that the association was not proved to have been negligent, and denied an award of damages, stating: Generally, in order for a unit owner to recover from the association for damages to his or her unit, the unit owner must prove that the damage was caused by the association's failure to maintain or repair the common elements or other portion of the condominium property that is within the maintenance responsibility of the association. Jones v. Lake Harbour Towers South Condominium Association, Inc., Case No , Arbitration Final Order (DBPR, November 16, 1994)(Citing Janke v. Corinthian Gardens, Inc., 405 So. 2d 740 (Fla. 4th DCA 1981) and Schmeck v. Sea Oats Condominium Association, Inc., 441 So. 2d 1092 (Fla. 5th DCA 1983)). Further, in order to recover damages either for injury to himself or guests or for damage caused to his unit by the common elements, an owner must prove that the association was negligent in failing to repair the cause of the damage, or that the association breached its contractual duty under the declaration to maintain the common elements. Id. By way of example, if a leak in the plumbing causes damage to a unit, an association is only responsible for damages to the unit if the leak was caused by common element plumbing or if the leak was caused by plumbing within the maintenance responsibility of the association according to the declaration. Further, the 5

6 owner would have to prove that the association was negligent in failing to repair the leak, or that the association breached its contractual duty under the declaration to maintain the common elements. Similarly, if damage to a unit was caused by a leak in the roof of the building, the association would be responsible for damages to a unit only if the roof was a common element or a portion of the condominium property within the maintenance responsibility of the association and if the association was negligent in failing to repair the roof or it breached its contractual duty under the declaration to maintain the common elements. [emphasis added.] The arbitrator in Hawaiian Club concluded that the association could not be held liable for damages because the association was not put on notice of the existence of the termites. While the association has not been shown to have been negligent, the respondent was shown to have affirmatively breached his duty under the declaration to keep his unit in good repair. There is, of course, no duty under the documents for an owner to actually reside in his unit, but article VII does require all owners to maintain their units in good repair and appearance, as set forth below: Article VII Unit owners shall maintain, at their expense, their units, and shall keep them in good repair and appearance. If a unit owner fails to do so, the Association may make the repairs to the unit that it believes are necessary to preserve the good condition and appearance of the Condominium, and the cost of those repairs shall be added to the assessments charged against that unit by the Association. Where an owner does not reside in the unit, it is incumbent on the owner to routinely and periodically examine and inspect the unit to ensure the absence of leaks and conditions that would otherwise lead to damage to the building and its 6

7 occupants 2, in recognition of the fact that where multiple owners occupy a single building, a problem that develops in one unit may well affect other units and the common element components of the building. Mr. Lemley did not regularly visit the unit for the past 15 years, and his family members did not regularly check on the unit, making it likely and plainly foreseeable that any routine problem within the unit would not be detected and remedied in a timely and efficient manner. Mr. Lemley s sister and brother in law most likely did not routinely visit the unit, as they live in New York. It is most likely that his parents visited the unit but not with sufficient regularity to monitor conditions and be an effective deterrent to evolving problems. Given the visitation schedule, it is likely that any small problem would, over time, assuredly turn into a major problem as occurred in this case. The photographs of the unit taken during the August 2002 inspection contain strong evidence that no one has lived there regularly since 1987, and that any visits since then have been sporadic and fleeting. Certainly no one has cleaned the unit with noticeable impact since 1987, the date of the newspapers and calendars scattered about the unit. The air conditioning system was either left off entirely during unoccupied periods between 1987 through 2002 or was left on such a high setting that it did not remove the humidity from the air, and this factor played a role in the proliferation of mold after the water intrusion into the unit. The fact that the mold had proliferated into such an intrusive and ubiquitous presence in the unit provides compelling evidence that the leak had gone undetected or unaddressed by the respondent for an extended period of time. The 2 There are any number of conditions other than leaks from the roof that could occur within the unit where it would not be immediately observable to the association including rusting and leaking water heaters, infestation of rodents or insects, electrical problems, major appliance malfunctions, pipes from any washing or plumbing fixtures that erode and flood the building, backups in the sewer system or break-ins from criminals. 7

8 arbitrator concludes that the respondent either personally or through family members did not maintain a meaningful presence at his unit during the period in question. The association proved by competent and substantial evidence that it incurred the following expenses in its efforts to remediate the respondent s unit: Task Undertaken Amounts Locksmith and lockbox $ Personal Property Appraiser fee $ Retention of Mold Expert $14, Clearance Testing Fee $ Restoration of Common Elements $1, Total $17, The association provided testimony that these services were undertaken and these costs were incurred as a necessary part of remediating the mold condition in the respondent s unit. The locksmith was needed in order to place a lockbox on the unit to ensure access as needed. The personal property appraiser services were needed in order to inventory and valuate the personal property contained in the unit. The services of the mold company were necessary in removing the mold and remediating the unit. The clearance testing was required as part of the remedial efforts to verify that the mold had been effectively removed. It was necessary for the association to restore certain components of the common elements damaged by mold. In short, the association has shown its entitlement to be reimbursed for these expenses. Based on the foregoing, the arbitrator finds that the association was not negligent or otherwise responsible for the damages in the respondent s unit, and that 8

9 the respondent instead breached his duty to keep his unit in good condition and repair, and that this failure led to the damages paid by the association for which compensation should be given. The respondent shall, within 30 days, remit to the association a certified check in the amount of $17, If the respondent has not paid these funds to the association within 30 days, the association shall be entitled to interest on this amount at the statutory rate of interest until the amount is paid in full. DONE AND ORDERED this 25 th day of May, 2004, in Tallahassee, Leon County, Florida. Karl M. Scheuerman, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 25 th day of May, 2004, to the following persons: Bennett L. Rabin, Esquire Brudny & Rabin, P.A U.S. 19 North, Ste. 300 Clearwater, Florida Jeffrey S. Lemley 138 Kay Circle Beaver, Pennsylvania Jeffrey S. Lemley 445 Third Street Beaver, Pennsylvania

10 Karl M. Scheuerman, Arbitrator Right to Appeal As provided by s , F.S., this final order may be appealed by filing a petition for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this order. This order does not constitute final agency action and is not appealable to the district courts of appeal. Attorney's Fees As provided by s , F.S., the prevailing party in an arbitration proceeding is entitled to have the other side pay its reasonable costs and attorney's fees. As provided by rule 61B , F.A.C., a motion seeking an award of attorney's fees and costs, which motion must conform to the requirements of the administrative rule, must be filed with the Division within 45 days of the date of the entry and mailing of this final order. 10