West Palm Beach Partner Olga Butkevich successfully argued and won a Motion for Summary Judgment on a water damage matter on behalf of a condominium association.
The owner and occupants of a condominium unit sued the Condo Association for water damage that came from several units above them. The Plaintiffs’ Complaint only referenced a tub leak, but the Plaintiffs also testified about a secondary and separate leak that stemmed in the kitchen area and caused extensive damage. The Association retained remediation and mold companies to address the damages in Plaintiffs’ unit for the kitchen leak. As a result of the damage, the cabinets, dishwasher and sink had to be removed and have not been replaced in the kitchen in the last year and a half. The Plaintiffs sued the Association for breach of the Declaration, negligence and breach of the Condo Statute for failing to remediate the damage from the leaks, failing to remediate the mold, and failing to fix the leaks. However, the Complaint only made reference to the tub leak and not the main kitchen leak.
The Defendant filed a Motion for Summary Judgment (MSJ) arguing that the Association had no duty to Plaintiffs regarding the tub leak since it did not originate from a common element, which the Association would have been responsible for. Plaintiffs’ counsel argued that the leak affected common areas that the Association should have been responsible for. Plaintiffs’ counsel also attempted to incorporate the arguments related to the kitchen leak but because it was not pled in the Amended Complaint, the Judge did not take the argument into consideration. The Judge ultimately decided that the Association’s responsibility for maintaining or repairing the common elements was related to whether the leak stemmed from a common element or not, and he found that it did not in this case, thereby granting the MSJ.
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