Your upstairs neighbor is liable and there's a state statute requiring unit owners to carry insurance, but if they don't, your only recourse is to sue. You will need to have the repairs completed and documented. If the amount is under $5,000 you can file in small claims court. It is easier to let your insurance handle it and if they feel they can recover from your neighbor, they will sue and you don't have to deal with the stress of trying to collect. Sometimes people win lawsuits only to learn they cannot collect from the other party.
This communication is not intended to create an attorney/client relationship. It is always recommended you consult an attorney in person to discuss your case. The Law Offices of Stage & Associates practices state-wide and represents homeowners and community associations. Please visit our website at www.stagelaw.com.
Actually, unless your upstairs neighbor was negligent and purposely broke his water heater, he probably is NOT liable to you beyond that which insurance will pay. He IS required to have insurance, though, so a small claims action may suffice in getting a judgment for your deductible, as mentioned, your insurance company can go after him for failure to obtain his own insurance.
From Chapter 718.111(11) - 1. A unit owner is responsible for the costs of repair or replacement of any portion of the condominium property not paid by insurance proceeds if such damage is caused by intentional conduct, negligence, or failure to comply with the terms of the declaration or the rules of the association by a unit owner, the members of his or her family, unit occupants, tenants, guests, or invitees, without compromise of the subrogation rights of the insurer.
Carol Johnson Law Firm, P.A. : (727) 647-6645 : email@example.com : Wills, Trusts, Real Property, Probate, Special Needs: Information provided here is anecdotal and should not be relied upon or considered legal advice. Every matter is different and answers given here are general in nature and may not reflect current Florida law at the time you are reading this posting. Please contact me if you feel you need additional assistance with your matter.