Can I Sue My Condo Association For Negligence?

Living in a community governed by a Homeowners Association (HOA) means enjoying certain benefits like maintaining common areas and amenities. However, when an HOA fails to fulfill its responsibilities, homeowners often wonder if they can hold the association legally accountable. As a Naples, FL condo lawyer who received a 10.0 rating from Justia can explain, the answer is yes — Florida law does allow homeowners to sue their HOA for negligence, but the process requires careful navigation of specific legal requirements.

At Perez Mayoral, P.A., our experienced HOA dispute attorneys regularly assist Florida homeowners who have suffered damages due to their association’s negligence. This guide explains the legal framework for negligence claims against HOAs in Florida, the requirements for pursuing such claims, and important considerations before filing a lawsuit.

Understanding Association Liability

In most states, including Florida, condominium associations have a statutory duty to maintain and repair common elements. When they breach this duty and injuries or property damage result, they can be held legally liable. This liability extends to various parties who might be affected, including:

Unit owners
Guests
Employees
In some cases, even trespassers

You may be wondering if this is enough to sue your condo management company. The answer is: the courts have established that associations can be held responsible for injuries resulting from slip and falls, drownings, and various other personal injuries or property damage incidents. See generally Thompson v. Poinciana Place Condominium Ass’n, Inc., 729 So.2d 457 (Fla. 4th DCA 1999) (housekeeper for unit brought slip and fall suit against condominium association).

Elements Of A Negligence Claim

To successfully sue a condo association for negligence, you must establish four key elements:

Duty of Care: The association had a legal obligation to maintain certain standards of care toward residents
Breach of Duty: The association failed to fulfill this obligation
Causation: This failure directly caused harm or damage
Damages: You suffered actual harm, financial loss, or property damage as a result

For example, if your association failed to repair a broken stair railing despite multiple reports, and you fell and broke your arm as a result, you might have a strong negligence claim. The association had a duty to maintain the stairs, breached that duty by ignoring the problem, and this directly caused your injury.

Negligent Maintenance Of Common Elements Causing Property Damage

A particularly troublesome area of association negligence involves the failure to properly maintain common structural elements that, when neglected, can cause significant damage to individual units which would allow you to sue your HOA for mismanagement. These cases typically involve:

Roof Leaks

When associations fail to properly maintain, repair, or replace aging roofs, the consequences can be severe for unit owners, including:

Water damage to ceilings and walls
Mold growth that can affect both property and health
Damaged personal belongings
Electrical system damage

Courts generally recognize that the roof is a common element that falls squarely within the association’s maintenance responsibilities. If an association ignores reports of leaks or delays necessary roof repairs, and water subsequently damages your unit, you may have grounds for a negligence claim.

Cast Iron Pipe Failures

Many older condominium buildings have cast iron plumbing systems that deteriorate over time. When associations fail to inspect, maintain, or replace these systems:

Sewage backups can damage flooring, walls, and personal property
Persistent moisture can lead to mold growth
Foul odors can make units uninhabitable
Structural damage may occur to the building

These cases can be particularly complex because the damage often occurs behind walls or beneath floors. Documentation of prior complaints about plumbing issues can be crucial to establishing that the association knew or should have known about the deteriorating pipes.

Exterior Wall Cracks And Building Envelope Issues

Associations are typically responsible for maintaining the building’s exterior, including:

Structural walls
Stucco or siding
Windows and doors in some cases
Waterproofing elements

When cracks develop in exterior walls or waterproofing fails, water intrusion can cause extensive damage to individual units. If the association fails to address these issues promptly after being notified, they may be liable for the resulting damage.

Legal Framework For Condo Association Negligence Claims

Statutory Authority

Florida law establishes the legal basis for condo association negligence claims through several key statutes:

For Condominium Associations (Chapter 718, Florida Statutes)

Florida Statute § 718.303 provides protections for condominium owners, allowing them to sue the association for failing to comply with its obligations.

Types Of Legal Recourse For Association Negligence

When facing negligence by your condominium association in Florida, you have two primary types of legal recourse available:

1. Negligence Claims

Negligence claims arise when the association fails to properly repair, maintain, or replace certain common elements such as roofs, walls, or pipes. When such negligence leads to damage to your property—for example, water intrusion causing damage to your home’s interior—you may pursue a negligence claim against the Condominium Association.

The purpose of these claims is to obtain compensation for the damages you incurred due to the association’s failure to fulfill its maintenance obligations. You would typically seek monetary damages to cover repair costs, property damage, and other related expenses.

2. Injunctions

In addition to seeking monetary damages, unit owners can also sue for an injunction, where a court orders the association to comply with its duties and obligations under the governing documents.

A significant case illustrating this approach is Amelio v. Marilyn Pines Unit II Condo. Ass’n, 173 So. 3d 1037 (Fla. 2d DCA 2015). In this case, the Amelios brought a suit against their Condominium Association for failing to address excessive moisture intrusion in their unit, which was linked to issues with the floor slab—a responsibility of the Association to repair and maintain according to the governing condominium documents.

This case established that unit owners have the right to seek mandatory injunctions against their Association to compel them to fulfill their obligations as stipulated in the governing documents, particularly when:

The neglect results in irreparable harm
There is no adequate remedy at law
A clear legal right has been violated

Important Recent Case Law

A recent Florida case has significantly strengthened homeowners’ positions regarding association responsibilities for maintaining and repairing common elements. In McLlenan v. Cypress Chase N. Condo. No. 4 Ass’n, Inc., 387 So. 3d 321, decided June 5, 2024 by Florida’s Fourth District Court of Appeal, the court established an important precedent regarding condominium association duties.

Case Summary

Randy McLlenan owned a condominium unit where he and co-residents noticed water leaks and mold. When sewage water began pouring through their bathroom ceiling light fixtures, the parties agreed this leak originated from a blockage in the upstairs unit owner’s bathtub. The association refused to remediate most of the damage, arguing that since the leak originated from another unit’s plumbing (not from a common element), they had no responsibility to make repairs.

The Court’s Ruling

The Fourth District Court of Appeal reversed the trial court’s summary judgment in favor of the association, establishing that:

Under Florida Statute § 718.113(1), maintenance of common elements is unequivocally the association’s responsibility.
The space between a unit’s ceiling and the upstairs unit’s floor is a common element, as is the space between the interior walls of adjoining units.
Associations have a non-delegable duty to repair common elements, regardless of what caused the damage.

The court specifically stated: “The association has a non-delegable duty to repair the common elements, regardless of the cause of the damage to the common elements.” It further explained that “the cause of the leak was irrelevant to the association’s duty to repair.”

Implications For Unit Owners

This ruling has profound implications for condominium disputes in Florida:

Associations must repair damaged common elements, regardless of the source of damage
While associations may bill the responsible party for the repairs, they cannot refuse to make the repairs based on who caused the damage
When damage to common elements causes subsequent damage to unit interiors, associations may bear responsibility for those secondary damages

This case provides powerful precedent for unit owners facing similar situations where associations attempt to avoid their maintenance and repair obligations by attributing damage to other causes.

Proving Negligence In Property Damage Cases

To succeed in a property damage negligence case against your association, you’ll need to establish:

Prior Notice: Evidence that the association knew or should have known about the problem before it caused damage to your unit. This might include maintenance records, board meeting minutes, previous complaints, inspection reports, or expert testimony about how long the problem existed.
Failure to Act Reasonably: Proof that the association failed to take reasonable steps to address the known issue within a reasonable timeframe. What constitutes “reasonable” will depend on the severity of the problem, the risk it posed, and industry standards for addressing such issues.
Causation: Evidence directly linking the association’s failure to maintain the common element to the damage in your unit. This often requires expert testimony from engineers, contractors, or other professionals.
Damages: Documentation of all property damage, repair costs, temporary housing expenses if needed, and any other losses directly resulting from the association’s negligence.

Pre-Suit Requirements For Association Negligence Claims

Before filing a lawsuit against your condominium association for negligence, Florida law requires specific pre-suit procedures that must be strictly followed.

For Condominium Associations

Florida Statute § 718.1255 establishes the process for condominium disputes. While many negligence claims fall outside mandatory arbitration requirements, it’s essential to consult with an attorney to determine if your specific claim requires arbitration before litigation.

Common Areas Of Association Negligence

Beyond property damage from failing structural elements, associations may be negligent in maintaining:

Swimming Pools And Water Features

Swimming pools and lakes on condominium properties are frequent sources of negligence claims. Associations must comply with applicable swimming pool codes and local ordinances, such as requirements for:

Self-closing gates
Self-latching mechanisms
Proper fencing
Warning signs

Courts have ruled that violations of such safety ordinances can constitute negligence per se (automatically considered negligent). In the case of Eckelbarger v. Frank, 732 So.2d 433 (Fla. 2d DCA 1999), a Florida court held that violating an ordinance requiring a self-closing, self-latching gate was negligence per se.

When there is an applicable swimming pool code or statute, the association must provide whatever protection the legislature or local government sought to impose. In Machin v. Royale Green Condominium Ass’n, 507 So.2d 646 (Fla. 3d DCA 1987), a Florida court emphasized this requirement for self-closing or spring-locking gates to prevent small children from entering pool areas.

Security Concerns

If an association has undertaken to provide security but does so negligently, they may be liable for resulting injuries. In Vasquez v. Lago Grande Homeowners Ass’n, 900 So.2d 587 (Fla. 3d DCA 2005), the association was found liable when an ex-husband gained access to a gated community and caused injuries to a visitor and resident.

Limitations On Association Liability

While associations have significant responsibilities, their liability is not unlimited. Courts recognize several important limitations:

Open And Obvious Dangers

Residents and other users of facilities have a duty to recognize and avoid obvious dangers. For example, in Murphy v. D’Youville Condominium Ass’n, Inc., 333 S.E.2d 1 (Ga. Ct.App. 1985), a court denied recovery to a swimmer who was injured after diving into a pool clearly filled with only three feet of water.

Similarly, in Saga Bay Property Owners Ass’n v. Askew, 513 So.2d 691 (Fla. 3d DCA 1987), a condominium association was held not liable for the drowning of an unsupervised six-year-old in an undeveloped portion of a lake on condominium property.

Comparative Negligence

If your own actions contributed to your damage or injury, this may reduce or eliminate the association’s liability. For instance, if you failed to report a water leak promptly, allowing damage to worsen, the association might argue that your negligence contributed to the extent of the damage.

Statutory Requirements

Associations are generally only required to provide the level of protection specified by applicable laws and regulations. In Hemispheres Condominium Ass’n, Inc. v. Corbin, 357 So.2d 1074 (Fla. 3d DCA 1978), a court found that when an association was not required by statute to provide a trained lifeguard, speculation that a lifeguard might have prevented a drowning was insufficient to establish negligence.

Special Relationships

Courts have also ruled that associations do not necessarily have “special relationships” with owners that would create heightened duties of care. In Peklun v. Tierra Del Mar Condominium Ass’n, 119 F.Supp.3d 1361 (S.D. Fla. 2015), a federal court rejected claims that an association had a duty to prevent an owner’s suicide, holding that Florida law doesn’t establish a per se special relationship between associations and owners.

Recovery Of Legal Fees

A significant consideration when contemplating a negligence lawsuit against your condo association is the potential recovery of attorney fees.

Fee Recovery Provisions

Florida Statute § 718.303 (for condominiums) provides that the prevailing party in litigation is entitled to recover reasonable attorney fees. This applies to both:

When you win a lawsuit against the association
When you successfully defend against an improper action by the association

Additionally, if you prevail against the association, you may recover amounts you paid through assessments that funded the association’s defense, preventing you from essentially paying to sue yourself.

Steps To Take If You Believe You Have A Property Damage Claim

If your unit has been damaged due to what you believe is association negligence:

Document Everything: Take detailed photos of the damage and the common element failure that caused it. Keep a timeline of events.
Report In Writing: Notify your association of the problem and resulting damage in writing. Send via certified mail or email with delivery confirmation.
Mitigate Damages: Take reasonable steps to prevent further damage, such as moving belongings away from a leak. Your failure to mitigate damages could reduce any recovery.
Collect Repair Estimates: Get detailed estimates from reputable contractors for repairing the damage.
Preserve Evidence: If possible, preserve physical evidence of the failure (such as pieces of broken pipe or roofing material).
Review Your Governing Documents: Understand exactly what maintenance responsibilities the association has under your condo declaration and bylaws.
Consult An attorney: A lawyer experienced in condominium law can evaluate your case and advise on the best course of action.

Seeking Professional Legal Guidance

Due to the complex nature of condominium litigation, it is highly advisable to hire an attorney experienced in this specialized legal area. Successfully navigating a negligence claim or injunction request against your condo association in Florida requires thorough understanding of association law and strict compliance with procedural requirements.

Our experienced attorneys can:

Evaluate whether your situation warrants a negligence claim, an injunction, or both
Guide you through pre-suit requirements specific to your type of claim
Document compliance with legal procedures
Represent your interests in mediation or litigation
Pursue maximum compensation for damages caused by association negligence or compel the association to fulfill its obligations
Apply relevant case law, including precedents like the McLlenan case, to strengthen your position

Contact Our Florida Hoa Attorneys

If you’ve suffered damage due to your HOA’s negligence, don’t wait to protect your legal rights. Contact Perez Mayoral, P.A. for a consultation to discuss your legal options with our lawyers who have received a Superb rating from Avvo. Our experienced team can help you understand whether pursuing a negligence claim against your HOA is appropriate for your situation and guide you through every step of the process.

This article is for informational purposes only and does not constitute legal advice. Every case is unique, and outcomes depend on specific circumstances. Consult with a qualified attorney to understand how these principles apply to your situation.