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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 117369
Experience:  Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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In our declaration of condominium of ownership in section 7.01

Customer Question

In our declaration of condominium of ownership in section 7.01 (b) it states that "the foundations, bearing walls, perimeter walls, structural slabs, roof, halls, columns, girders, beams, supports, corridors, fires escapes, elevators, stairways and common entrances, exits or communications ways" are declared as Common Elements and Limited Comm Elements and the responsibility of the Condo Association.
My first question is, I live on the first floor of condos, the lobby is below, when the building was build in the early 1970's my patio front wall was built with all windows with support beams in between, and it is a load bearing wall. My neighbor has the same set up. It is my understanding that where the horizontal plane and the vertical plan meet that forms the boundary of the condo building it is considered the foot print of the building. I had to replace my "store front" windows due to a storm and part of the association said that was my responsibility and half said that it made up the "square of the building" and that should not be my responsibility. I have looked for a clear cut answer and can not find one.
Second question, the building is under a much needed repair at this time. They informed me and my neighbor this past Friday night that they are going to fix the garage deck that connects with our patio. On the official records, vol 3754 pg 417 it states private patio. Now they say that they will replace the railing but with no gate. According to zoning codes in Jacksonville, FL there is not a code stating "no gates allowed". They said it is a roof and that the new codes do not allow for gates on roofs. My documents still state it is my patio, and beyond that is a roof. Is there I can do about these two situations?
Thank you,
Submitted: 2 years ago.
Category: Real Estate Law
Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
If this was a bearing wall and a perimeter wall, then the CC&R is pretty clear that they are liable to make the repairs. From where you describe it the wall is the load bearing perimeter wall and that is what they were supposed to be responsible for and your insurance should be pursuing their insurance for repairs since it was storm damage.
The gate on the roof is not illegal as long as it is accessible to emergency crews. You are allowed to have a private patio and again, if the Association refuses to honor your deed, you have a right to sue them for violation of your deed and you have a right to seek damages for them breaching the contract and trying to take your property without just cause.
Customer: replied 2 years ago.
Well the insurance companies did point fingers and to no avail. The condo association has flood insurance and it was a named storm and their drains were stopped up during the storm and caused the water to intrude into my condo. My insurance did pay for the damage inside but not the windows. The Condo Association said that they sent the request out to a layer for "interpretation". It does state that we are responsible for our windows, except if it is part of a common element which my wall is. So I have paid for the windows and I really would like a answer that I could go back to the Association and hand them the bill. As for the patio, that again they are saying "it is a matter of "interpretation"....My condo drawings show "my patio" the condo is saying that it really is a roof top and that roof tops 30' off the ground cannot have a gate. When this condo was bought it was bought with a patio. Do I have any legit legal rights to either of these questions?
Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your reply.
You would have a right to sue them to make them pay for the damage to the windows and also to make them install the gate back since the patio is your private space and they are removing your private space. Unfortunately, to fight them here you will have to sue them in court with a condo law attorney.
Customer: replied 2 years ago.
And that would cost more than the windows. Plus, I haven't found a condo lawyer in the area and remember we have a few lawyers as owners. So other that I have no other recourse? They are not taking my word on the patio either. I have to find codes and statues....but they don't have to provide them...doesn't seem fair to me.
Customer: replied 2 years ago.
can you explain OSHA 1926.501, I know what OSHA is, but the number. It was just sent to me as the reference to the railing and the gate. I am looking through it but thought you might have a quicker answer.
Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your reply.
You need a condo attorney in one of the nearby larger cities who will not have contact with anyone in your building and no conflict.
The only possible recourse you can have is filing suit in court, there is no other recourse I am afraid.
As far as the codes, I do not see anything in the FL building codes about the gate in this situation, so it would have to be in your local ordinances and that is something you need to contact your building/zoning commission about.
Wow, are they giving you nonsense. OSHA is NOT A BUILDING CODE and quite honestly, it is regarding installation of safety rails and fall protection systems for employees and if that is what they are trying to hang their hat on it does not protect them it supports your contention that a railing and gate needs to installed to protect their employees from falling.
Customer: replied 2 years ago.
well once again I will through in the towel. Like I said, it would cost more in lawyer fees and court costs than the windows. Thanks anyway...
Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your reply.
I am sorry to hear that. You could pursue it in small claims court if it was less than $5000 total and seek to recover your money without an attorney on the windows.

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