Caribbean Adjusters International Hosted Condominium Insurance Forum in Puerto Rico

On March 14, 2018, Caribbean Adjusters International hosted the “Condominium Insurance Forum” at the Marriott Hotel in San Juan, Puerto Rico. The forum was divided in two groups of panelists formed by adjusters, brokers, producers and local attorneys with special guest speakers such as Puerto Rico’s Insurance Commissioner (via Skype) and our own William “Chip” Merlin. Important topics were discussed related to claim issues for condominiums on the island.

The forum had two sections. During the first section, panelists discussed the steps that the Board of Directors should follow for their insurance claims and how to avoid fraud. The emphasis was a call for an assembly between the Counsel of Honors and the individual owners and to secure a fidelity bond. A claim by any owner has the power to stop any process or plans made at this assembly. Puerto Rico’s Insurance Commissioner, Javier Rivera, requested all Board of Directors send their claims to his office for him to keep track and work on better alternatives for condominiums to recover and attract new investors.

The second section was by a group of attorneys, including Chip Merlin. Local attorneys expressed their concern for lack of knowledge and capacity for attorneys in Puerto Rico to represent clients on insurance claims. Local attorneys and insureds present at this forum admitted this is a new process for them and made emphasis on the need to acquire professional services from adjusters and attorneys with experience in insurance claims.

On this topic, one of the main discussions was the limitations for insureds to settle claims because arbitration is not an option and mediation in many cases would not be successful, forcing insureds to litigate their claims. Mr. Merlin explained that even when litigation could be the last option for many insureds, for many cases in the past it has been the only successful alternative for recovery and also the best method for obtaining mediation results.

Reimbursement for Urgent Repairs Under Puerto Rico's Condominium Act

It is important for insureds to know that Puerto Rico’s Condominium Act provides reimbursements for repairs considered “urgent” and made at their expense. This will only apply for urgent repairs needed in common areas of the condominium.

Payment for urgent repairs; recovery from other co-owners:

When the building or its common elements require urgent or necessary repair, security, or preservation works, any owner may perform them at his/her own expense and recover from the other owners the proportional payment for the expenses incurred, by means of the pertinent explanations with supporting data.1

Many condominiums in Puerto Rico were affected by Hurricane Maria. Some of the damages call for urgent reconstruction or repair. When a Board of Directors has not acted promptly for reconstruction or repair in common areas of the condominium, owners may make these repairs at their expense and ask for reimbursement from the Board. If the Board meant to postpone or not do the repairs, then the owner will not be refunded. The Condominium Act states that the owner should claim his or her reimbursement no later than thirty (30) days after the expenditure and, if applicable after reviewing, the Board will make the payment within a period of thirty (30) days. An alternative is for the Board to forgive the maintenance debt.

In the event of disasters such as Hurricane Maria, insurance companies are adjusting a great number of claims, and delays in acting promptly can occur. Condominium property owners must maintain and secure property for a larger number of people, and when urgent repairs are needed they must act promptly, even if that means at their own expense. By providing reimbursement, Puerto Rico’s Condominium Act incentivizes owners to act quickly.

1 2003 Condominium Act, 31 L.P.R.A. sec. 1291o (Translation by the Translation Office of the Puerto Rico Government).

Puerto Rico: Condominium Repair Negotiations vs. Unjust Enrichment

After Hurricane Irma and Maria caused damage to many condominiums in Puerto Rico, it is the Board of Directors’ job to search for estimates and determine how the damage will be repair. Many will be limited by the amount of compensation approved by their insurers and will be forced to repair only the necessary parts of the common areas. It is important for any decision to be clear, in good faith and not exceed the authorization of the Board of Directors in the repair of damage caused by the hurricane.

In Garriga, Hijo, Inc. v. Condominio Marbella,1 after Hurricane Hugo affected Puerto Rico in 1989, the Marbella del Caribe Condominium suffered damage directly to the ventilation equipment of the basement and on the roof. After reviewing several quotes, the Board of Directors chose Mr. Garriga’s quote and included it with its insurance claim. The insurer granted a lower amount of compensation and it was not enough to cover all the work planned for repairs. Therefore, Mr. Garriga was informed he would only be hired to repair the ventilation equipment in the basement. The Board of Directors decided not to fix the roof ventilation equipment. On the date of the repairs, a group of employees of Mr. Garriga insisted on installing the roof equipment, contrary to the agreement with the Board of Directors. Mr. Cancel, the condominium administrator, did not allow them to proceed with the work, and after contacting Mr. Garriga’s office, the group of employees did not install the roof equipment.

Months later, the administrator of the Marbella condominium was replaced and Mr. Garriga’s employees returned to the condominium to work on the roof. The new administrator was unaware of the issue and allowed the employees to enter and install the equipment on the roof. When the Board of Directors received an invoice from Mr. Garriga, they refused to pay and required the removal of the roof equipment.

The issue led to a lawsuit and the Court of First Instance dismissed the claim and required Mr. Garriga to pay three thousand dollars for attorney fees, plus costs. Mr. Garriga appealed. The Court of Appeal determined that Marbella condominium had benefited from the installation of the roof equipment and therefore an unjust enrichment2 had occurred.

The Supreme Court of Puerto Rico held that for the doctrine of unjust enrichment to apply it requires:3

  • The existence of an enrichment;
  • the existence of a loss;
  • the connection between the loss and the enrichment;
  • lack of cause that justifies enrichment;
  • the existence of a law that excludes the application of enrichment without cause.

In this case, the Supreme Court of Puerto Rico determined that Mr. Garriga had caused this situation, even though he suffered a loss by not getting paid for the equipment installed that benefited Marbella. Mr. Garriga knowingly and with intention acted stubbornly (bad faith) by installing the equipment even when Marbella’s Board of Directors had informed him they did not want the roof equipment. The Court held that the doctrine of unjust enrichment did not apply to this case and that Mr. Garriga could remove his equipment from the roof of Marbella at his own risk.

1 Garriga, Hijo, Inc. v. Cond. Marbella, 143 D.P.R. 927 (1997).
2 Unjust enrichment (definition) a benefit by chance, mistake or another’s misfortune for which the one enriched has not paid or worked and morally and ethically should not keep.
3 Garriga, at 934.