By Michael J. Gelfand, Esq. / Published June 2020
The Florida Legislature inverted expectations: the 2020 Florida Legislative session was guaranteed to enter a blistering combative overtime. The COVID-19 crisis seemingly forced the legislators to close ranks and dispose of matters swiftly.
Laws impacting Florida community associations were relatively few, generally summarized below. Bills that do not have a complete “2020–___” chapter number are pending signature or veto of the governor; thus, they may not become law and effective.
Law Enforcement Vehicles. (Chapter 2020–005). Condominium, homeowners, and cooperative associations are prohibited from preventing a law enforcement officer who is a unit owner, or a tenant, guest, or invitee of a unit owner, from parking his or her law enforcement vehicle in an area where they otherwise have a right to park; (§718.129; §719.131; §720.318; effective upon becoming law).
Uniform Commercial Real Estate Receivership Act. (HB 783/Chapter 2020–___). The law of receivers is substantially changed; however, generally, a receiver is not able to sell real property outside of the ordinary course of business. (New Chapter 714, effective July 1, 2020.)
Special Neighborhood Improvement Districts. (HB 1089/Chapter 2020-___). Special neighborhood districts are to have a three, five, or seven-member board of directors with staggered four-year terms, each of whom must be landowners. (Section 163.511, effective July 1, 2020.)
Impact Fees. (HB 1006/Chapter 2020–___). A new impact fee shall not apply to current or pending permit applications unless the fee reduces the total mitigation costs or impact fees. Impact fees and impact fee credits are assignable and transferrable from one development or parcel to another within the same zone or district. (Section 163.31801, effective July 1, 2020.)
Emotional Support Animals. (SB 1084/Chapter 2020–___). Matters covered are subject to federal provisions. A housing provider may deny a reasonable accommodation for an emotional support animal if that animal poses a direct threat to safety or health of others or of property; and, if the person’s disability is not readily apparent, request supporting information, including that listed. Supporting information from out-of-state practitioners is limited to those in good standing, providing in-person care or services on at least one occasion. Requests for additional information are permitted. Housing providers may not request information that discloses the diagnosis or severity of a person’s disability, or any medical records relating to the disability; however, that information may be disclosed at the requestee’s discretion. A housing provider may not require a specific form, notarized statement, or a specific methodology for seeking a reasonable accommodation. A registration such as a card or certificate is not by itself sufficient information to reliably establish a need for an emotional support animal as well as providing for disciplinary action. (Various statutes, chapters 413, 519, 536, 760, and 817, effective July 1, 2020.)
Housing Discrimination. (HB 374 2020–___). Restrictions in a title transaction which discriminate on the basis of a characteristic protected by the United States or Florida Supreme Courts under the 14th Amendment to the United States Constitution or Section 2, Article 1 of the Florida State Constitution, including race, color, national origin, religion, gender, or physical disability, are not enforceable and are declared null and void, including not being able to be preserved pursuant to the Marketable Record Title Act. The board of directors of a property owners or other association, by a majority vote, may request the removal of the provision. A civil action may enforce rights under this provision. (Section 712.065, and Chapter 760, effective upon becoming law.)
Lease Witnesses. (HB 469, 2020–___). Witnesses requirements for the creation of certain real property interests shall not apply to leases of real property. (Section 689.01, effective July 1, 2020.)
Corporations. (SB 838, 2020–___). Update on corporate laws and procedures concerning corporations. Concerning the appointment and procedure for committees, committees established by condominium, homeowners, and cooperative associations are excepted generally from the changes. (Chapters 607 and 617, effective upon becoming a law.)
Curative Deeds. (SB 886, Chapter 2020–___). Scrivener’s errors in deeds that appear obvious may be corrected. (Section 689.041, effective July 1, 2020.)
Rental Agreements Upon Foreclosure. (SB 1362, Chapter 2020–___). Creating the Protecting Tenants at Foreclosure Act; upon the foreclosure of a federally related mortgage loan on a dwelling or residential real property after the effective date, providing tenants at least 90-days’ notice to vacate, allowing a lease to continue for its remaining term unless the purchaser occupies as a primary residence, subject to the 90-day notice requirement. Subject to federal provisions and further definitions and conditions. (Sections 83.561 and 83.5615, effective July 1, 2020, except as stated.)
Fireworks. (SB 140, 2020–___). Fireworks may be utilized “during a designated holiday” defined as New Year’s Day, Independence Day, or New Year’s Eve, without being an exclusive regulation and subject to local government regulations; however, fireworks cannot be limited by a homeowners association’s board of directors’ adopted rule but must be utilized in compliance with a recorded declaration of covenants. (Section 791.08, effective upon becoming law.)
What is your Florida community association’s duty to maintain safe common areas/elements? This is a question of greater importance as community associations are “locking down” facilities and considering what is the proper level of maintenance and warnings.
Further, what happens when someone is injured on association property because of repairs that are being made which were not yet completed? If the injured party obtains an award for damages, must the association pay not only the share of the damages it caused but also a contractor’s portion of the damages?
A Florida appellate court recently addressed the issue of whether an association can be held responsible for the share of damages attributable to a contractor which the association hired to make repairs to a boat dock. The facts in Walters v. Beach Club Villas Condominium Association Inc., Fla. L. Weekly D 448 (Fla. 3rd DCA, February 26, 2020) indicated that Walters attended a party hosted by the Shachars, who owned a unit in the condominium. At the time of the party, the condominium boat dock was undergoing repairs which had not yet been completed.
Walters fell into a hole while walking on the unfinished portion of the dock and sustained serious injury. Walters sued the condominium association and the independent contractor hired by the association to repair the dock. The jury returned a verdict for Walters and awarded her $38,157, apportioning fault as follows: 15 percent association, 25 percent contractor, 10 percent Walters, and 50 percent the Shachars.
Walters sought to have the association and contractor held jointly and severally liable for 90 percent of her damages. The trial court denied her motion and granted attorney’s fees for the association based on Walter’s rejection of a proposal for settlement.
The Florida appellate court found that the trial court erred in not holding the association jointly and severally liable for the portion of fault attributable to the contractor. The court found that the association was liable for the contractor’s portion of the damages but not the Shachars’ portion. The court explained that a property owner owes invitees a duty to use reasonable care in maintaining the property in a reasonably safe condition and a duty to warn of latent or concealed dangers. These duties are nondelegable.
In other words, when an owner owes a nondelegable duty of care to a plaintiff, if the plaintiff wins a negligence claim, then the owner pays for the negligence even if the owner’s contractor is severally liable for any portion of the damages attributable to the contractor.
A moral of this decision is the importance of remembering that an association’s duties to maintain and repair property when nondelegable cannot be shifted to others! When you undergo construction on common property, make sure you have adequate warnings in place. When there is a danger, do not rely on your contractor to place the warnings without supervision, and confirm that access is properly addressed. Of course, in this day, a condominium with common element rooms must consider exposure to maintenance issues.
Michael J. Gelfand, Esq.
Senior Partner, Gelfand & Arpe, P.A.
Michael J. Gelfand, Esq., the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar Board Certified lawyer in Condominium and Planned Development Law and in Real Estate Law, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is a past Chair 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 firstname.lastname@example.org or (561) 655-6224.