Determining Common Area Liability/Responsiblity

Hopefully I'm not getting into too much legalese, but I have some questions regarding common areas and HOA responsibility when it comes to condominiums.

Florida Statute 718.111(11)(f) details insurance requirements. Under 718.111(11)(f)(3), it states; "The coverage must exclude all personal property within the unit or limited common elements, and floor, wall, and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing which are located within the boundaries of the unit and serve only such unit. Such property and any insurance thereupon is the responsibility of the unit owner".

My question relates to the verbiage "any of the foregoing which are located within the boundaries of the unit and serve only such unit." I was always under the impression that perimeter drywall was considered a common element, which defined the boundary. Of course paint, wall coverings, etc. is the responsibility of the unit owner. Could the perimeter drywall ever be considered to "serve only such unit," meaning an individual unit? I understand an association can opt out of the provisions of paragraph (J), however without any official record of this, wouldn't the association be required to insure the common elements, with perimeter drywall being considered a common element? When could perimeter drywall ever not be considered a common element? Under what circumstances would an association not be required to insure perimeter drywall as a common element, unless they opted out by majority vote?

The declarations state that "Each unit owner shall maintain, repair and replace at his expense all portions of his unit which are not covered by the insurance policy maintained by the association, as well as certain portions of the Common Elements which serve only his unit, including, but not limited to, windows, doors, screens and associated hardware".

Could the "not limited to" verbiage be used as a loophole to absolve the association of responsibility, or would the statutes dictate their liability under law?

Thanks!

Thank you....In the declaration, it simply states the following: "Unit" - means a part of the respective Condominium property which is to be subject to exclusive ownership

Nowhere in the declaration does it define boundaries, specific common elements, or mention drywall in any manner.

There are condos where the drywall is common element, but they are not the majority of condos.

Typically, from my understanding, Association is responsible for studs outward and the unit owner is responsible for the drywall inwards.

Additionally, based on what you stated, it sounds like the unit owner may be responsible for limited use common elements (a balcony as an example).

MalcolmP, does your associations, Declaration or HOA rules and regulations (or even Bylaws) have requirements for what insurance each owner must carry? If so, please quote these requirements verbatim.

Much of the reporting on the net says that drywall is often (but by my reading, not always) an association responsibility when an insurable event occurs. For example, see:
https://beckerlawyers.com/condo-association-doesnt-cover-unit-finishes-news-press/
https://www.youtube.com/watch?v=7LCDfifkjJs
https://theclaimsquad.com/2021/05/01/condominium-insurance-claims-whos-responsible-for-the-drywall/
https://www.merlinlawgroup.com/loss-assessment-coverage-under-the-ho6-condominium-policy/

It's clear to me that for drywall damage, the statute alone does not determine whether the association must pay for the drywall repair.

You say the Declaration does not specifically exclude the drywall. In other words, you assert that the phrase, "which serve only his unit, including, but not limited to" can be ignored.

I disagree.

There is a principle in law called unius est exclusio alterius. The reason this does not apply is because of the phrase "which serve only his unit, including, but not limited to." I say this based on observing directly much litigation between owners and HOAs and reading case law on the same. Covenants are contractual terms. The courts often interpret covenants using contract law principles.

As well the statute has many caveats for a situation like yours. For example, from FS 718.111 (11) (j) 4.:

The association is not obligated to pay for reconstruction or repairs of property losses as a common expense if the property losses were known or should have been known to a unit owner and were not reported to the association until after the insurance claim of the association for that property was settled or resolved with finality, or denied because it was untimely filed.

I would need a lot more information to argue that the association has responsibility for the drywall. Like a copy of your insurance policy and the HOA's master policy.

To report a loss (make a claim) on an insurance policy you have to be a named insured. Generally, a condo owner cannot directly make a claim on the HOA's insurance policy.

With Dean, our CC&R Article on insurance does not permit ownrs to make aclaim against the HOA's insurance.