Declarations of Condominium and Damage Caused to Other Units

Florida courts have consistently held that restrictions contained within a declaration of condominium are presumed valid. This presumption exists because each unit owner purchases his or her unit with knowledge of those restrictions and accepts them as part of the bargain. See Hidden Harbour Estates, Inc. v. Basso, 363 So. 2d 637, 639–40 (Fla. 4th DCA 1978); Woodside Village Condominium Ass’n, Inc. v. Jahren, 806 So. 2d 452, 457 (Fla. 2002); and Valencia Reserve Homeowners Association, Inc. v. Boynton Beach Associates, 278 So. 3d 714, 718 (Fla. 4th DCA 2019). Many high-rise condominium declarations contain provisions restricting an insurer’s ability to pursue subrogation claims against other unit owners for damage to a unit. Florida law generally supports these restrictions.

Pursuant to § 718.111(11)(j)(2), Florida Statutes, a unit owner is responsible only for expenses not covered by insurance when the damage results from the owner’s intentional conduct, negligence, or failure to comply with the declaration or association rules. The statute applies not only to the unit owner but also to family members, occupants, tenants, guests, and invitees. Importantly, this statute does not create an independent right of subrogation where none otherwise exists, nor does it create a private cause of action allowing an insurer to pursue another unit owner for damages covered by insurance. See Universal Property & Casualty Insurance Co. v. Loftus, 276 So. 3d 849, 853 (Fla. 4th DCA 2019). In fact, the statute expressly limits liability to charges and expenses that are not covered by insurance. As a result, when a condominium declaration restricts or waives an insurer’s right to seek subrogation against another unit owner, Florida law generally supports and enforces those provisions.