Landscaping Falls and Parking Prohibitions

Avoiding Liability Over Landscaping Falls

By Michael J. Gelfand, Esq./ Published December 2023

Yes, Trees and Grass Can Provide Hidden Dangers

     Florida community associations often have common areas with landscaping throughout. You have seen or you yourself have crossed over a flower or landscaped bed as a shortcut from one area to another. Usually it is quick and over with, but sometimes there is a misjudgment, and the shortcut becomes the site of a fall and injury. Will your association be liable for injuries?

     A recent Florida decision addressed the issue of whether there was liability for negligence when a customer injured herself when she allegedly stepped in a concealed hole in a grass bed in a raised landscaped area of the parking lot. In a situation that could easily occur in most Florida communities, the facts in Pio v. Simon Capital, GP, 48 Fla. L. Weekly D 1351 (Fla. 2nd DCA, July 7, 2023), reflected that the customer sued the operator of a mall; a department store in the mall, Macy’s; and the mall’s landscaping company for negligence. She alleged that a palm tree had been removed leaving a hole that was not properly filled in. The trial court found that the defendants did not have a duty to warn of the open and obvious condition in a landscaped area and granted summary judgment for the defendants.

     As to the operator of the mall, the Florida appellate court agreed with the decision of the trial court. The court noted that if a hazard is open and obvious, a property owner does not have a duty to warn of the hazardous condition, but it still has a duty to maintain the property in a reasonably safe condition. Furthermore, the court explained that landscaping features are generally found not to constitute dangerous conditions as a matter of law.

     “Here, there was no evidence that the grass bed had become a well-trampled footpath or that the grass bed had been in continuous and obvious use as a pedestrian shortcut such that Simon was put on constructive notice of the condition,” the court stated. “There was only evidence that ‘a few people’ had walked from their vehicle across the grass to the sidewalk ‘on occasion.’ This was not sufficient to create a duty.”

     This decision can assist many associations to shift liability for slip and falls back to the claimant when there is proper design and maintenance. Proper efforts likely will include a reasonable pathway from parking areas to building entrances. If there is a pathway beaten into a lawn or other landscaping, then that can be notice of a potentially dangerous shortcut which should be corrected. Thus, to reduce the potential for liability, associations should periodically check to make sure that the landscaped areas are properly maintained.

Parking in the street? Can an association prohibit it?

     If you live in a Florida community association, can you or your guests park in the street in front of your house? The first question that may decide the answer usually is whether your association or the town you live in owns the street.

     The facts in Huck v. Kenmare Commons Homes Association, Inc., 48 Fla. L. Weekly D 1428 (Fla. 1st DCA, July 19, 2023), indicate that a car was routinely parked in front of a home. The car belonged to a caregiver for the homeowner, who needed round-the-clock assistance. The association sued the homeowner to stop this practice, alleging that the recorded covenants and restrictions prohibited street parking. The trial court found that the homeowner violated the parking limitations and enjoined the owner and his guests from parking in the street.

     The Florida appellate court disagreed and reversed the decision of the trial court. The court noted that the community’s declaration of covenants did in fact provide that there would be no street parking. However, before recording the declaration, the developer deeded ownership of the neighborhood roadways to the City of Tallahassee because the developer did not want to take responsibility for maintaining the neighborhood roads.

     The court explained that the no-parking promise was personal and enforceable only against the developer. It was not enforceable against anyone else, especially against someone else who parked on the city streets.

     The moral of the story is, if your community association owns the streets, then that association is more likely able to enforce no-parking restrictions. If the town, city, or county owns the streets, then that community likely will not be able to enforce no-parking restrictions, even if your declaration of covenants contains such restrictions. The bottom line likely will be what the exact language in the restrictions state, which may have to be updated. ⁿ

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, a certified circuit and county civil court mediator, a 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 ga@gelfandarpe.com or 561-655-6224.