Recent Rulings Involving Asbestos in Condos Show the Uncertainties

Shareholder Eduardo J. Valdes authored an article for the Miami Herald‘s “Real Estate Counselor” column. The article, which is titled “Recent Rulings Involving Asbestos in Condos Show the Uncertainties,” focuses on recent court decisions that highlighted a gray area of critical importance to condominium associations and owners alike: Who is responsible for asbestos remediation when it is discovered in a unit? Eduardo’s article reads:

. . . Two recent decisions in a case originating in Sarasota County, one issued by the circuit court and the other by Florida’s Second District Court of Appeal, underscore the complexity of this issue. The case, Coleman Lassen v. Dolphin Tower Condominium Association, centered on the presence of asbestos-containing materials in the ceilings of several units in a 15-story Sarasota condominium completed in 1974.

During renovations, the association’s contractors entered certain units to access common elements and, in doing so, disturbed popcorn ceiling finishes that contained asbestos. The association then demanded that the affected unit owners, including Lassen, abate the asbestos at their own expense. It relied on a provision in its governing documents stating that owners are responsible for maintaining, repairing, and replacing “interior surfaces of . . . ceilings . . . and all other portions of [their] apartment except the portions specifically to be maintained, repaired, and replaced by the Association.”

Lassen refused and filed suit, citing a different provision of the property’s declaration of condominium stating that the association must promptly repair any “incidental damage” to a unit caused by its maintenance or repair of the common elements.

At trial, the association argued that decorative ceiling finishes, including those containing asbestos, are clearly the owner’s responsibility under its governing declaration. Lassen countered that the asbestos abatement became necessary only because the association’s contractor disturbed the ceiling while accessing the common elements, triggering the association’s duty to repair the resulting damage, and this presented a genuine issue of material fact that must be determined at trial and precluded summary judgment.

The trial court concluded that under the unambiguous language of the declaration, the decorative ceiling finish within the unit must be maintained, repaired, and replaced by its owner, and it granted summary judgment in favor of the association.

Lassen appealed the decision based on his contention that the governing documents contained two conflicting provisions that created a question of fact for the jury:  One assigning responsibility to the owner for interior surfaces, and another requiring the association to repair incidental damage it causes.

The Second District Court of Appeal reversed the trial court’s decision. The appellate panel reiterated that summary judgment is appropriate only when there is no evidence upon which a jury could properly return a verdict for the opposing party. If that party demonstrates the existence of a genuine issue of material fact, the motion must be denied.

Two of the three judges concluded that because the asbestos was not discovered until the association’s contractor damaged the ceiling while performing its obligation to repair and maintain the common elements, the relevant provisions of the declaration were subject to two reasonable interpretations. As a result, they determined a factual dispute existed that could not be resolved on summary judgment.

The third judge agreed that summary judgment for the association was improper but reached that conclusion for a different reason. In that judge’s view, the governing documents were not contradictory; rather, they worked in harmony to exempt owners from responsibility for incidental interior damage caused by the association’s performance of common element maintenance. With that interpretation, the evidence presented could allow a reasonable jury to rule in the owner’s favor, making summary judgment inappropriate. . .

Eduardo concludes his article by noting that as these recent circuit and appellate court rulings illustrate, determining which party bears responsibility for asbestos remediation in condominium units is a highly complex issue, dependent on the specific facts and the governing provisions at play. He writes that associations and unit owners in such cases should proceed only under the guidance of experienced legal counsel, who must carefully evaluate both their client’s actions and the stipulations set forth in the community’s declaration of condominium.

Our firm salutes Eduardo for sharing his insights into the takeaways from these recent rulings with the readers of the Miami Herald.  Click here to read the complete article in the newspaper’s website.

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