Condos and HOA's

Some owners looking to blame others after Hurricane Irma

Many Southwest Florida condominium and homeowners’ association owners suffered damage to their unit, home, cars or other possessions as a result of Irma’s wrath.

While most understand that hurricanes are considered no-fault “acts of God” that caused their damage, there have been a few who what to try to have someone else cover their costs of repairs by trying to find fault with their governing association or their neighbor.

Because hurricane insurance deductibles are high (usually 2 percent of the home’s value or more), most of the damage owners incurred were under their deductible even though maybe in the thousands of dollars.

Rather than eating the deductible costs like most, some owners have tried to concoct reasons why the association or their neighbor was somehow negligent and should pay for their damage.

We have heard some say that the association or neighbor did not properly trim their trees, properly stake down new planting or properly button down outdoor furnishings before the storm and such items were then blown into their home or unit by the storm.

All an association or a neighbor can do before a storm is act in a reasonable manner to minimize storm damage within the short time frame before it appears the area will be hit by a storm. They can, of course, move pool furniture and other movable objects inside or secure them in another fashion. However, they probably do not have time or manpower to remove awnings or stake down new trees.

It would be a rare instance to show that an association’s or neighbor’s conduct before a hurricane would rise to the level of being legally negligent.

Also, if an association’s common area tree or your neighbor’s tree falls on your fence, pool cage or home, the association or neighbor is not responsible for your damage or responsible to remove the fallen tree. You are responsible to remove that part of the fallen tree on your property and fix your own fence, pool cage or home.

If an owner puts in a claim with the owner’s first party insurance carrier, if its carrier believes the association or some other party was negligent before or during a hurricane thereby contributing to the owner’s damage, the owner’s insurer will bring the owner along in any action to recover damage allegedly caused by the association or another.

Owners must realize that Mother Nature is unpredictable, and as we all know now during hurricanes, the damage inflicted does not discriminate. One home may have a large tree fall on it, another may lose part of its roof and other may be flooded, while the neighboring home may have only a little pool screen tears or no damage at all.

So it really is the luck of the draw how much one’s property will or will not be damaged in a hurricane and owners need to understand whatever damage they have is almost always the storm’s fault and not any fault of anything or anybody else. So owners need to repair their property and move on and quit trying to find scapegoats.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.