Legislative Update: Part II

By Michael J. Gelfand, Esq. / Published June 2017

This month’s Florida Law column addresses legislative and liability issues. At high noon on March 7, 2017, the Florida Legislature convened its annual regular session pursuant to Florida Constitution Article III. That was also the deadline for individual legislators to file their substantive bills.

In anticipation of the session, legislators filed bills and committees met. The committee process has resulted in a number of bills being amended, with some apparently going by the wayside. The following summarizes changes in the status to selected bills potentially impacting Florida community associations:

Marketable Record Title Act

Joining SB 318 to except homeowners associations from the law regarding extinguished covenants is HB 735, providing for similar relief.

Estoppel Letters

SB 398 has been amended by a “committee substitute.” Within 10 days of a request, an association is required to provide an estoppel letter containing not only the owner name, unit number, and financial information, but other information in 15 categories, providing for a waiver of claims for not timely responding, and consolidating bulk sale charges. There are no exceptions for communities run by volunteers.

Property Taxes

SB 26 and HB 289 seek to significantly limit a condominium association’s ability to petition for real property tax relief on behalf of its members by requiring all unit owners to opt in to a petition for relief.

Construction

HB 685 and SB 734 seek to clarify the Contractors’ Lien Law allowing a notice of commencement to be terminated in an effort to avoid clouds on title and disputes between property owners, administrators, and contractors.

Association Administration

HB 653 and SB 744 are currently the “big association bills” seeking to amend the Condominium, Cooperative, and Homeowners Association Acts, including standardizing the production of records within 10 working days after receipt of a written request, providing that bids are to be kept for one year, deleting the small association (less than 50 units) option to prepare a cash receipts and expenditures report in lieu of financial statements, deleting the limitation on waiving financial statements for more than three consecutive years, mandating that notices of meetings to adopt an assessment include specific language, and requiring the board of directors to adopt a rule concerning posting and providing notice of meeting. Life Safety Code certification must be provided by a professional engineer for condominiums, confirming that many condominiums of 75 feet or less are not required to undertake a fire sprinkler opt-out vote, and providing additional clarification to the process for cooperative and condominium associations.

Fines

HB 713 would limit a homeowner association’s ability to fine, providing for the delays of fining and related charges for certain time periods after the death of an owner; and if a fine is to be levied after the death of an owner, to provide notice to the “executor” of the parcel owner’s estate at least 5 times by certified mail, return receipt requested.

Historic Properties

SB 778 seeks to provide ad valorem, real property, and tax exemptions for historic condominiums and cooperatives when authorized by a county for commercial and not-for-profit uses.

Vacation Rentals

Consolidating a number of bills, HB 6003 would repeal the preemption and allow counties and municipalities to limit vacation rentals.

More will be developing as the session continues. Remember that communicating with your legislators is effective, particularly for those issues you feel strongly about.

Torts: Literally Falling in the “Soup” Triggers Claim Against Owner and Management Company

What happens when someone slips and falls on association property as a result of a slippery or wet substance on the floor? Will the management company be liable for damages because it did not clean the floor before someone fell? Liability may depend not only on how long the wet substance remained on the floor, but also on what is stated in the contract between the management company and the owner of the property.

In a recent decision, a Florida appellate court ruled that the Florida landowner and the management company were not liable for injuries caused by a woman who slipped and fell in pea soup while exiting an elevator. The facts of Wilson-Greene v. The City of Miami, 42 Fla. L. Weekly D 237 (Fla. 3rd DCA, January 25, 2017) indicated that Wilson-Greene entered a building owned by the City of Miami to deliver paperwork. Interestingly, the delivery was to the inspection division of the building department! Upon leaving, when Wilson-Greene stepped out of the elevator, she slipped and fell backward, hitting her head, and lost consciousness. When Wilson-Greene came to, she saw pea soup all over her.

Wilson-Greene sued the City of Miami, which owned the building, and Vista Maintenance Services, the building’s management company, for negligence. The trial court granted summary judgment for the City and Vista.

The Florida appellate court agreed with the trial court decision. The appellate court noted that where a contract exists, you must look at the language in the contract to see if the defendant owes a duty to use reasonable care in performing the contract. The contract between Vista and the City provided that Vista is to “pay close attention to the three-story lobby area” and “not to underestimate the lobby requirements. . .as this is a critical area of importance.” Additionally, Vista was to “police [the] area and rearrange furniture on a daily basis.”

Wilson-Greene argued that Vista owed a duty to the building patrons to “constantly” patrol and supervise the area where Wilson-Greene fell. Rejecting Wilson-Greene’s argument, the court found that the contract did not create a contractual duty on Vista to “constantly” patrol the building.

In addition, the appellate court concluded that there was no actual notice because no one saw the pea soup spill on the floor; thus, no one knew how the soup got there. Wilson-Greene claimed that because the soup was not hot, the soup had been on the floor for a substantial period of time. “The mere presence of soup which is ‘not hot’ on the floor is not enough to establish constructive notices as to Vista or the City,” the court stated.

This decision shows the importance of the language in a contract. Frequently, associations overlook the so-called “fine print.” In determining the liability of a property owner or a management company, one key factor is the management contract. Of course, timely and proper oversight of the property is another important factor. If you have any questions regarding a management contract, specifically as to duties regarding the public, contact your association’s attorney.

Michael J. Gelfand, Esq.

Senior Partner of 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 Florida Bar Board-Certified Real Estate Lawyer, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is the 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 michael@flcaj.com or (561) 655-6224.