In a recent case, the Florida’s Third District Court of Appeals resolved a decade old controversy related to boat slips of a condominium association damaged by Hurricane Irene in 1999. The Court noted that the dispute had been ongoing for such a large amount of time that the National Weather Service re-circulated the name Irene, which just recently affected many people along the East Coast of the United States.

In Roberts v. Nine Island Avenue Condominium Association, several boat slip owners argued that the condominium association left them high and dry in 1999 by not insuring the marina property prior to Hurricane Irene. The dispute between Nine Island Avenue Condominium Association and unit owners of boat slips at the association centered on who was responsible for the cost of reconstruction of the marina and boat slips. After the hurricane, the association special assessed each slip owner a proportionate share of the $701,050 reconstruction. Some of the slip owners paid the special assessment and others refused.

In 2002, eighteen slip owners, about half the total number, filed a lawsuit asking the trial court to declare that they did not have to pay the special assessment. The basis for their argument was that the association failed to insure the marina and docks. The association responded to the lawsuit with foreclosure counterclaims against those slip owners who had not paid the special assessment. After an evidentiary hearing, the trial court held that the slip owners were responsible for the costs pertaining to the marina, and that the association was not obligated to insure the marina and docks.

The Third District stated that the resolution of the case required analysis of the Florida Condominium Act and the Declaration of Condominium. The Court noted that the dock slips are limited common elements and that the Declaration of Condominium allows the “owner” of a dock space to sell or transfer his or her right of use of that assigned space, but only to another unit owner. The property manager testified after Irene that a preliminary study of the marina was done by a local structural engineering firm before Hurricane Irene, which concluded the marina had outlasted its useful life. On June 2, 2000, the property manager advised the slip owners of this finding.

The Court reviewed the insurance article of the Declaration of Condominium documents and held that it was clear and unambiguous. The insurance article did not require the association to purchase and maintain insurance coverage on the docks. The plain language of the insurance provision required the association to purchase insurance only on the building and other improvements of the condominium, including the units and common elements. The word “Building” was defined in the Declaration as “the [twenty-five]-story high rise building constituting the principal improvement located on the land.”

The boat slips were expressly stated to be “Limited Common Elements” in the Declaration. The Court stated that if “Limited Common Elements” were to be included in the required insurance coverage of the Declaration, then the people that drafted the documents should have included them. Since they did not, the Court held the condominium documents were reasonably susceptible to only one interpretation: the association was not required to purchase and carry a policy of windstorm insurance on the marina and boat docks. The Third District Court of Appeal affirmed the holding of the trial court.

The opinion ended a long dispute between the association and numerous unit owners. The case reveals how interpretation of a condominium association declarations can determine a dispute over who is obligated to insure portions of condominium property. As the Third District stated:

However intuitively obvious our decision might appear, a sojourn through the not-so-intuitively-obvious interstices of the Florida Condominium Act and the Declaration of Condominium, [] is necessary to explain our decision.