by Michael J. Gelfand, ESQ. / Published May 2015
Now you see it—everyone will see it! The explosion of social media, Facebook, and other social networking sites creates new issues, or problems, even for community associations.
Can a Florida community association director, manager, or even the association control the deletion of a social media posting? The photograph or comment that seemed so cute, which in retrospect was not, may have to be preserved if there is a claim involving a subject of the posting.
Expect your community counsel to be asking about your social media presence because postings intended to create a sense of community can also go too far! [Note: this issue may also apply to you personally!]
Interestingly, posting rules are evolving not because of official records requests to associations, but in discovery of facts in personal injury lawsuits. In a recent Florida appellate decision, the appellate court ruled that photographs posted on Facebook were discoverable by the defendant in a personal injury lawsuit. The facts of Nucci v Target Corporation, 40 Fla. L. Weekly D 166 (Fla. 4th DCA, January 7, 2015), indicate that Maria Nucci sued Target for injuries she sustained after she slipped and fell on a foreign substance on the floor of a Target store.
Before taking Nucci’s deposition, Target’s attorney viewed 1,285 photographs on Nucci’s Facebook page. At the deposition, Nucci objected to disclosing her Facebook photographs. Two days after the deposition, Target’s attorney saw only 1,249 photographs on Nucci’s Facebook page, indicating that Nucci had taken some pictures down.
Target moved to compel inspection of Nucci’s Facebook profile and other electronic media, argued that Nucci by filing her claim had put her physical and mental condition at issue. Nucci argued that she had a reasonable expectation of privacy regarding her Facebook information and that Target’s examination would invade her right to privacy. The trial court compelled production of not only the Facebook photographs, but also screenshots of all her cellphone pictures for the two years prior to the accident until the present!
The Florida appellate court denied Nucci’s petition to overturn the trial court order compelling production of photographs from her social networking sites. “If a photograph is worth a thousand words, there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social media before the occurrence of an accident causing injury,” the court stated. “Such photographs are the equivalent of a ‘day in the life’ slide show produced by the plaintiff before the existence of any motive to manipulate reality.”
The court continued explaining that photographs posted on social network sites such as Facebook are not protected by a right to privacy. Once a person posts a picture, which can be copied and shared with others, the expectation that the information is private is no longer reasonable.
This decision provides at least two important lessons for Florida communities and those involved in the communities. First, if an asso-ciation, its officers, directors, managers, or employees find themselves in litigation, social media postings likely will have to be preserved just like other items of potential evidence. Second, and perhaps more important in the long run, whatever is posted on social media may have unintended audiences, and caution should be exercised before posting, especially for the association’s pages and sites.
CONSTRUCTION: OWNER LIABILITY FOR OBVIOUS DEFECTS AFTER ACCEPTANCE
Associations often hire contractors to repair association property. What happens if the design of the work is defective and causes an injury? Can the association hold the contractor liable for negligent design? The answer for Florida communities depends on several factors.
Recently, a Florida appellate court outlined these factors when letting stand a jury’s finding that a contractor was not liable for negligent design of a project and the design was accepted by the owner. Though the facts may seem complex, the situation presented in McIntosh v. Progressive Design and Engineering, Inc., 40 Fla. L. Weekly D 160 (Fla. 4th DCA, January 7, 2015), indicated that the city of Pembroke Pines asked the Florida Department of Transportation (FDOT) to install traffic signals at an intersection. Progressive Design and Engineering was hired to design the traffic signals. The design plans were approved by the FDOT.
McIntosh’s father was killed when exiting a mobile home park at the intersection. The claim was that traffic signals for the intersection were im-properly designed. Although the jury found the design company negligent in its design of the traffic signals, the jury found that the design was accepted by the FDOT and therefore, the trial court entered judgment for the design company, finding no liability.
The Florida appellate court affirmed the judgment for the design company. The court explained that under the Slavin Doctrine, a contractor cannot be held liable for defects in the work if: (1) the defect is patent and (2) the owner has accepted the work. What is patent? The court explained that the “test for patency is not whether or not the condition was obvious to the owner, but whether or not the dangerousness of the condition was obvious had the owner exercised reasonable care.”
The appellate court pointed out that an FDOT employee actually discovered the potential design defect before the accident. Additionally, the work by the design company was completed and accepted by the FDOT before the accident. The Slavin Doctrine exists, as the court explained, because it would be unfair to hold contractors responsible for patent defects after the owner has accepted the improvements.
This decision illustrates the importance of proper inspection of work before acceptance. For many jobs, this necessitates having an engineer’s inspection. Otherwise, once an association accepts control over the work, the association may not be able to hold a contractor liable for defects in the work. Do not forget that an added benefit of an engineer’s inspection is that the officer signing a payment check will have a better comfort level that the work was properly completed and the money paid.
Michael J. Gelfand, Esq.
Senior Partner of Gelfand & Arpe, P.A.
Michael J. Gelfand, the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and how to effectively achieve those goals. Gelfand is a Florida Bar Board Certified Real Estate Lawyer, Certified Circuit and County Civil Court Mediator, Homeowners’ Association Mediator, an Arbitrator, and Parliamentarian. He is the Director of the Real Property Division of The Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at Michael@flcaj.com or (561) 655-6224.
LEGISLATIVE UPDATE: PART I
It is time for the annual, midsession Florida Legislative Update.
It seems like it was only yesterday that the legislative session began. Actually, it has been just a few weeks, but for the extremely short calendar, the legislative session is nearing its halfway point and many proposals are intended to impact Florida communities.
With conflicting priorities between the Governor and House and Senate leaders, the success of many matters is too close to call. As we observed year after year, brace yourselves for last-minute issues creating new controversies and shifting allegiances all of which affect which bills become laws. One bill has passed and become law. HB 7029 (tabled)/SB 720/HB corrected a mistake in drafting last year’s changes to condominium association assessment collection rights in §718.116(6), now ensconced in Florida Chapter Law 2015-2.
Otherwise, many issues currently on the agenda in Tallahassee and their related bills, some of which are inconsistent, you can check at OnlineSunshine: www.leg.state.fl.us and are summarized in topic order as follows:
• Construction Claims. HB 87/SB 418 would provide significant limitations on pursuing claims for construction defects.
• Development. HB 791/SB 348 would cure issues in bulk buyer transactions, which impact transition/turnover of condominium association control. HB 791/SB 748 would make permanent bulk buyer provisions, and specifying duties and obligations. HB 579/SB 562 would further revise the comprehensive plan process, including a state review.
• Elections. HB 1211/SB 748 would authorize electronic voting. HB 791/SB 748 would confirm that electronic duplicates of proxies are valid.
• Employees. HB (No House Bill)/SB 126 would prohibit an employer from requiring an applicant or current employee to provide access to that person’s social media account.
• Estoppel Letters. HB 611/SB 736 would significantly limit an association’s time to respond to an estoppel letter request, would cap the fees with a base at $100, allowing certain additional fees, and imposing other significant requirements.
• Financial Reports. HB 4021/SB 796 would require all community associations to provide owners financial reports regardless of the association’s size or revenues. (No House Bill)/SB 1454 would permit the Division of Condominiums to audit a condominium association’s financial statements if the association refused to provide a statement after two written requests by the Division.
• Foreclosures. HB 791/SB 748 would limit the documentary stamp tax due upon a deed in lieu of foreclosure to an association to the amount of assessments, not the fair market value of the property. HB 975/SB 1066 would require payment of all assessments accruing after a foreclosure judgment. HB 791/SB 748 would clarify the amounts due from a purchaser at a foreclosure sale.
• Homeowners Associations. HB 1263/SB 1308 would impose the long-anticipated annual fee, proposed at $2 per residential parcel; mandate an annual report by managers and associa-tions; change transition/turnover deadlines based on community size; allow disputes to be heard in the Division of Condominium’s arbitration section regarding restrictions, maintenance, assessments, and records; allow a three-day rescission for the sale of a parcel after delivery of official records; and authorize state education programs. HB 791/SB 748 would finally provide a formal name “Homeowner Association Act” to Florida Statutes Chapter §720, and includes within the definition of “governing documents” a homeowner association’s rules.
• Meetings. HB 791/SB 748 would allow posting of notices on condominium association property that is not a common element.
• Notaries. HB 663/SB 436 would require notaries to keep a journal of their efforts. HB 523/SB 520 6R would allow electronic sealing of documents.
• Real Property Taxation. HB 447/SB 1206 addresses communities that straddle county lines by providing that the common property in each county is separately assessed, not divided along subdivision parcels.
• Recalls. (No House Bill)/SB 1454 would require the Division of Condominiums to monitor a recall if for the third time.
• Reserves. (No House Bill)/SB 1018 would raise the threshold for reserve funding of a component to $100,000.
• Service Animals. HB 71/SB 414 while addressing public accommodation requirements to permit service animals, also provides for penalties for misrepresentations as to an animal status or need.
• Termination. HB 643/SB 1172 would provide additional rights to owners who would have their condominium unit rights terminated, and clarifying and adding additional procedures.
• Tenancies. HB 305/SB 656 would remove “transitory occupancy” from the Landlord-Tenant Act. HB 779/SB 524 would reinstate significant provisions of the now lapsed federal extension of tenancies after a foreclosure for up to 90 days after notice is provided by the new owner. HB 4009/(No Senate Bill) would remove “vacation rentals” and “transient apartments” from public lodging regulations in Florida Statutes §509.
• Vehicles. HB 381/SB 786 would extend towing authority held by condominium associations to cooperative and homeowners’ associations, and allow the towing of vessels left on property improperly for more than 10 days.