From time to time certain legal buzz words seem to jump off the page when reading court cases. “Custodial contract” is one of those interesting legal terms that I recently came across in an opinion from the U.S. Middle District of Florida. Upon first glance, it seems that the term must relate to the area of family law and guardianship or, more literally, to a contract for janitorial services. But law, in its infinite wisdom, has a way of transcending beyond the norm. Custodial is defined as “of or relating to the work of guarding or maintaining” and “marked by care and supervision.” The American Heritage Dictionary of the English Language, Fourth Edition. The concept of a contractual relationship arising out of the factual circumstances and actions pursued by the parties is an interesting one. The “custodial contract” concept as it relates to condominium association and unit owners is one with slim discussion in Florida legal precedent… until a recent case.

The case is Hawkins v. Condo. Owners Assoc. of Sand Cay, Inc., 2011 WL 5826570 (M.D. Fla. November 18, 2011). Mr. Hawkins owns a unit in Sand Cay Beach Resort for use as a vacation property and as a rental unit. In the lawsuit he filed against the condominium association, he alleged that his unit sustained damage during renovations performed by contractors working under the association’s direction. In 2004, substantial renovations to the exterior of the buildings of the units began. The renovations included structural renovations, repair and replacement of roofs, siding, walkways, windows and doors, and required entry of contractors, subcontractors, and other repair people into the affected units.

Mr. Hawkins alleged that his unit suffered mold infestation directly related to the repairs being performed in an unsatisfactory manner. In the Amended Complaint, he alleged causes of action against the association for breach of contract (Count I), negligent retention (Count II), fraud (Count IV), and conversion (Count V). The association moved for final summary judgment on all counts. This means that the association asked the Court to issue a judgment in its favor on all counts, declaring it the winner of the case.

Mr. Hawkins alleged that he entered into a “custodial contract” with the association when he vacated his unit and surrendered it to the association during the ongoing renovations to his unit. The count for breach of this “custodial contract” was the only count of the complaint on which the Court did not issue a summary judgment in favor of the association. The Court found that a jury must decide whether the association breached a “custodial contract” with the owner to repair damages, including mold, caused by the building repairs undertaken by the association.

As part of its analysis into this holding, the Court looked to the declaration of condominium and found that it gives rise to this “custodial contract” where it states:

6.1 Maintenance, Alteration, and Improvement. The responsibility for the maintenance of the condominium property and restrictions upon the alteration and improvement thereof shall be as hereinafter provided.

6.2 By the Association. The Association shall maintain, repair, and replace at the Association’s expense:

(a) All portions of a unit, except interior surfaces, contributing to the support of the unit, which portions shall include but not be limited to load-bearing columns and load-bearing walls.

(b) All conduits, ducts, plumbing, wiring, and other facilities for the furnishing of utility services contained in the portions of a unit maintained by the Association, and all such facilities contained within a unit that service part or parts of the condominium other than the unit within which they are contained.

(c) All property, real and personal, owned by the Association, the exterior wall enclosing any limited common element, and all common elements as defined in Articles 3.3(a) and 5.3(a) of the Declaration. The Association shall not be responsible for the maintenance of the interior of any limited common element as defined in Article 5.3(b).

(d) All incidental damage caused to a unit by such work shall be repaired promptly at the expense of the Association.

This decision reveals that the declaration of condominium controls the duties and obligations of the association and unit owners and can be a place where legal concepts such as the “custodial contract” take root. Association managers and boards of directors should review the declarations with representatives to ensure they are aware of the rights, duties and obligations of the association and unit owners created in their documents. Who would have thought that a concept such as a “custodial contract” could have its roots in a declaration of condominium?