By Jonathan S. Goldstein, Esq. / Published October 2016
At the time of writing, my wife is 40 weeks pregnant. I know firsthand that Zika is terrifying for expectant mothers and fathers, family, and friends. Even worse, the medical community still does not know the extent of the Zika risk. 1 Zika has caused a state of emergency to be declared in Florida in counties where Zika is present. 2 As of early August 2016, Zika had been linked to more than 1,700 confirmed cases of microcephaly in Brazilian newborns, along with a myriad of other lesser known birth defects. 3 Microcephaly is a rare form of brain damage notorious for its drastic reduction of head size. Zika is logically a threat to tourism, property values, and most importantly, public health.
Condominium associations have a duty to maintain the common elements, per §§ 718.111(1)(a) and (3), and 718.113(1), Fla. Statutes. Homeowners associations have similar duties set forth in their governing restrictive covenants. As part of this maintenance function, condominium and homeowners associations (associations) will decide whether to proactively embrace mosquito prevention or risk indifference.
Legal challenges to association decision-making subject associations to a test of reasonableness—the “business judgment rule”—as long as there is power to take the action sought. 4 This standard prohibits a court from substituting its own discretionary judgment for that of the board of directors. Id. The director standard for non-profit corporations provides guidance as to what is reasonable. This standard permits reliance on information from those employees or officers believed to be reliable and competent regarding the issue(s) at hand, professionals, and “other persons as to matters the director reasonably believes are within the persons’ professional or expert competence; or… a] committee of the board of directors of which he or she is not a member if the director reasonably believes the committee merits confidence.” (See Section 617.0830 (2)(a)-(c), (3), and (4), Fla. Statutes.) Prudent directors will comply with this standard of care when analyzing issues of mosquito control and the Zika virus and will document this process.
Associations can and should consult with local, state, and county health department and/or mosquito control officials, their existing pest control company, or available public age-ncy informational resources. Informational sessions open to residents can be helpful. Information can be shared via online postings on the association’s website or written information made available at the management office. This will both raise awareness and reinforce that the association, its board, and its management company are taking precautions to assist residents in dealing with this public health hazard. Committees to make Zika recommendations can foster participation. Town hall style forums can be coordinated with city officials and neighboring associations to also provide much needed information, such as guidance on mosquito bite prevention. A state of emergency warrants taking these kinds of measures. Information helps associations decide what is appropriate, what is too much, and how to strike a balance.
Some suggested strategies can include the following:
• Maintaining common area water features while limiting larvae growth. While draining water features for a short time based upon necessity may be permitted (depending on the circumstances), it may be overdoing it to drain the pool. The more drastic the change to the function and appearance of the common elements, the greater the risk that a member vote will be required for a “material alteration” to the common elements and that residents will argue they’ve been deprived of their quiet enjoyment of the common areas.
• Installing safe and effective mosquito traps (with warnings of any dangers) and confirming that pest control protocols incorporate a safe and reasonable mosquito control that management is prepared (ideally, contractually obligated) to monitor.
• Implementing procedures to eliminate standing water on the common elements.
• Enforcing covenants and rules to prevent the breeding or entry of mosquitos, such as bright line mosquito control rules to keep all unit balconies, patios, yards, and terraces free of furniture or other items (such as empty pots for plants, tarps, which can collect water, etc.) that allow for standing water, or prohibiting extensive periods of open doorways into buildings.
• Requesting spraying by local mosquito control authorities (possibly at no cost) with ample notice to residents.
• Shifting or mitigating contractual or other express assumptions of duties and risks that could be implicated by Zika. These may be present in contracts with third-party vendors and existing association rules and policies.
• Imposing site condition requirements for construction contracts with attention to mosquito control. Associations with the authority to approve owner alteration projects with pre-conditions can include safeguards against standing water and other mosquito friendly conditions. Due to restrictions on architectural approval found in Section 720.3035, Fla. Stat., homeowners associations should proactively adopt guide-lines or rules that incorporate such conditions before implementing them.
• Notifying local authorities of nearby mosquito breeding sites or even actively lobbying governmental officials for action. For example, associations in Miami Beach have an incentive to seek the imposition of mandatory contractor compliance with certain mosquito control measures as a precondition for obtaining a construction permit (as long as the association can avoid sharing responsibility for such compliance).
Some associations will view Zika through the prism of liability avoidance. Some say greater activity assumes an increased duty and risk, incentivizing inaction. Some support for this idea exists in case law in which associations have been found liable for potentially analogous claims of negligent security. In Vazquez v. Lago Grande Homeowners Association, Inc., 900 So.2d 587, (Fla. 3d DCA 2004), for example, the court emphasized the association’s admitted assumption of responsibility for the security of the members, that the community’s security was a noted selling feature, that assessments paid for security, and that the association was on repeat notice of the security company’s failure to man its post and perform its duties prior to the incident. However, Zika is distinct from security because it is difficult to determine where or how Zika is contracted. Reasonable efforts to spread information, implement and enforce policies and rules to avoid standing water, and active spraying should help protect associations from liability while protecting residents and the community. Additionally, association minutes and communications can notify members that pest control and informational efforts are not an assumption of any duties to prevent infectious diseases.
Some associations can attempt to rely on disclaimers of liability present in many governing documents (which typically state that the association does not ensure public safety and compliance with municipal requirements); however, these may be too vague to overcome the thresholds that must be met to enforce (typically disfavored) liability disclaimers.
Mosquitos are already defined as a nuisance in Florida’s “Mosquito Control Law,” and mosquito control authorities can seek an injunction to abate any condition on private property which could foster mosquitos.5 Local ordinances prohibiting standing water are now more likely to be enforced. Nuisance restrictions are common in governing documents, and claims to enjoin and seek damages for a nuisance can be brought by residents, members, or even neighboring property owners in relation to mosquito infestations and conditions that promote mosquito breeding. (See e.g., City of Lakeland v. Douglas, 167 So. 467 (Fla. 1940); See e.g., Baum v. Coronado Condominium Ass’n, Inc., 376 So.2d 914 (Fla. 3d DCA 1979) (Owner of unit successfully sued association for injunctive relief to abate a nuisance caused by developer’s construction of noisy floors)). Associations can also bring nuisance claims to protect themselves from nearby threats of mosquito infestation.
In City of Lakeland, a city’s sewage plant discharge constituted a trespass and private nuisance to neighboring plaintiffs whose properties were affected by the resulting severe mosquito populations. The discharge caused a drastic increase in mosquito larvae by killing minnows, which typically winnowed the larvae. Even though the nuisance was actionable and damages could be awarded, damages for loss of employment caused by malaria were found too speculative. Would microcephaly damages be similarly too speculative? Associations in a state of neglect due to limited financial resources are most at risk.
Home to many expecting families like mine, associations have a stake in the outcome of this Zika crisis and an incentive to actively prevent a nuisance. Associations, management companies, and people of all trades should passionately join the fight against the Zika virus, not just because it’s reasonable, or a contract requires it, but because it’s the right thing to do.
1. See e.g., Amrith Ramkumar, Zika May Cause Brain Damage in Adults, Too, Bloomberg (Aug. 19, 2016), www.bloomberg.com/news/articles/2016-08-19/zika-may-cause-brain-damage-in-adults-too.
2. See e.g., Gillian Mohney, Florida Gov. Declares State of Emergency in Counties With Zika Virus, ABC News (Feb. 3, 2016), abcnews.go.com/Health/florida-gov-declares-state-emergency-counties-zika-virus/story?id=36696887.
3. See Ben Tinker and Luis Graham Yool, Fighting Zika’s Microcephaly in Brazil, One Brain at a Time (Aug. 4, 2016), www.cnn.com/2016/08/03/health/zika-brazil-microcephaly-babies-brains-gupta/.
4. See Farrington v. Casa Solana Condominium Ass’n, Inc., 517 So.2d 70 (Fla. 3d DCA 1987).
5. See §§ 388.0101, 388.011, and 388.291(3), Fla. Stat.
Jonathan S. Goldstein
Senior Associate Attorney, Haber Slade P.A.
Jonathan S. Goldstein is a senior associate attorney with Miami-based Haber Slade P.A. Goldstein’s practice areas include condominium and homeowners association (HOA) law, construction litigation, and commercial litigation. He can be reached at email@example.com. This article is for informational purposes and is not intended to be and should not be taken as legal advice. For more information on Haber Slade, call (305) 379-2400 or visit www.dhaberlaw.com.