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Eisinger Law Insider Legal Real Estate Update

September, 2019






FLORIDA BUILDING CODE VIOLATION PRIMA FACIE EVIDENCE OF NEGLIGENCE
Parker v. Shelmar Prop. Owner’s Ass’n, 274 So. 3d 1219 (Fla. 5th DCA 2019)

A woman tripped on a parking lot wheel stop located near the egress of the building and sued the property owners association responsible for maintaining it alleging that the association breached its duty to maintain the premises in a reasonably safe condition based in part upon the specific placement of the wheelstop.  The association defended claiming that the condition of the wheelstop was open and obvious and that it did not violate its duty to maintain the premises because invitees should be reasonably expected to see wheelstops and proceed accordingly.



The trial court agreed with the property owners association and granted summary judgment in its favor. The woman appealed to the Fifth District Court of Appeal which disagreed with the trial court, reversed the summary judgment and remanded the case for further proceedings.  The Fifth District explained that the open and obvious danger doctrine did not completely relieve the property owners association of its duty to maintain the premises in a reasonably safe condition.  The injured woman retained an expert who submitted an affidavit supporting her claim and opining that the placement of the wheelstop was a dangerous condition in violation of the Florida Building Code, as well as industry safety standards.  Since evidence of a building code violation is prima facie evidence of negligence, material facts remained as to whether the association maintained the premises in a reasonably safe condition.



CONDOMINIUM UNIT OWNER NOT RESPONSIBLE FOR TENANT’S NEGLIGENT CONDUCT
Universal Prop. & Cas. Ins. Co. v. Loftus, 44 Fla. L. Weekly D2025 (Fla. 4th DCA August 7, 2019).

A water leak in an upstairs condominium unit which was then occupied by tenants of the unit owner caused damage to the downstairs unit.  The downstairs unit was covered by insurance and the insurance company paid to repair the unit.

The insurance company, on behalf of the insured downstairs unit owner, then filed suit against the tenants  for negligence and the upstairs unit owner for vicarious liability based on Florida Statute §718.111(11)(f) to recover what it paid to remediate the unit.  Section 718.111(11)(f) essentially requires that all condominium property outside of an individual unit must be insured by the condominium association, but any property within the boundaries of an individual unit and any insurance thereupon is the responsibility of the unit owner.



The upstairs unit owners moved for a summary judgment claiming that Section 718.111(11)(j) does not provide a private cause of action against a condominium unit owner for the alleged negligence of the unit’s tenants and they were not liable for negligence because neither they nor their tenants breached any duty of care in maintaining the property.  The trial court granted final judgment in favor of the upstairs unit owner and the insurance company appealed to the Fourth District Court of Appeal.



The Fourth District held that the trial court’s ruling was correct – Section 718.111(11)(j) does not provide a condominium unit owner with a private right of action against another unit owner for the “intentional conduct, negligence, or failure to comply with the terms of the declaration or the rules of the association” by the latter’s tenants or other occupants.  This decision does NOT, however, mean that an aggrieved unit owner or its insurer do not have a basis to seek relief from another unit owner-landlord.  At the conclusion of its opinion, the Court pointed out that neither its decision nor anything in Section 718.111(11)(j) compromises the right to bring a common law action against a party directly responsible for damage caused by its own negligence or intentional conduct.



BEWARE MANDATORY ARBITRATION PROVISIONS
Guan v. Ellingsworth Residential Cmty. Ass’n, No. 5D18-3633, 2019 Fla. App. LEXIS 12940, at *1 (5th DCA Aug. 23, 2019).

The Declaration of Covenants, Conditions and Restrictions for the Ellingsworth Community contain a mandatory arbitration provision which requires that disputes be subject to negotiation in good faith, mediation, and a demand for arbitration within thirty days after termination of the mediation proceeding. If this procedure is not followed, the dispute is waived.

When a homeowner modified the landscaping surrounding her home without authorization, the homeowners association made written demand that she restore it to its previous condition.  The homeowner refused, and she and the association proceeded to negotiation and mediation. The mediation resulted in an impasse, and, rather than initiating arbitration, the homeowners association filed suit in state circuit court where it argued that despite the clear terms of the governing Declaration, Florida Statute § 720.311 allowed for a legal filing, rather than arbitration.



The Court found that the Declaration and § 720.311  both provided for arbitration, but that the Statute did not supersede the Declaration’s mandatory arbitration provision and allow for filing of a lawsuit.  Since the Association failed to submit the dispute to arbitration within thirty days of the mediation impasse, it waived its claim against the homeowner.  The Association’s claim was dismissed with prejudice and judgment entered in favor of the homeowner.



VERBAL ALTERCATION AT HOA MEETING INSUFFICIENT FOR INJUNCTION AGAINST STALKING
Shannon v. Smith, 44 Fla. L. Weekly D1878 (Fla. 1st DCA July 23, 2019)

An aggrieved homeowner sought and obtained a permanent injunction against stalking entered against his neighbor based on a number of incidents in the community, including the theft of signs from the neighborhood, a “blow me” email sent to him, the placement of certain flyers in a “flyer box”, a sign throwing incident, and an incident at the homeowners association meeting that, according to a police report, involved a verbal altercation between the two.  A video of the subject at the homeowners meeting was played at the injunction hearing which appeared to have an impact on the judge as he cited the language used at the meeting was “aggressive in nature” when he entered the injunction.

The First District Court of Appeal reviewed the permanent injunction on appeal and reversed the permanent injunction finding that the alleged conduct failed to meet the statutory requirements to demonstrate stalking.  The verbal altercation between the two neighbors at the HOA meeting – despite the “aggressive” language did not warrant the entry of an injunction against stalking.  While the Court did not condone the actions and behavior of the offending neighbor, they were simply insufficient to enter a permanent injunction against him.



NON-RESIDENT UNIT OWNER’S LOSSES NOT COVERED
Arguelles v. Citizens Prop. Ins. Corp., 44 Fla. L. Weekly D1726 (Fla. 3d DCA July 3, 2019)

Citizens issued a homeowner’s insurance policy covering a condominium unit located in Miami, which included an automatic annual renewal provision.  After residing in the unit for ten months, the unit owner accepted a position as a private wealth manger and moved to New York.  He rented out the units to two tenants thereafter.

One of the tenants reported a water leak in the kitchen, and the unit owner hired a plumber and water mitigation company to make necessary repairs. He also reported the loss to Citizens which, after a post-loss investigation denied coverage because it determined the leak was long-term moisture exposure and therefore subject to a policy exclusion.



After the denial of coverage, the unit owner filed suit, and Citizens moved for summary judgment asserting that a residency requirement provision in the policy precluded coverage.  Both the trial court and, later, the Third District Court of Appeal agreed with Citizens.  While the term “residency” was not defined in the policy, the Court found clear and unambiguous language in the policy which identified the covered premises as the “unit where you reside.”  Because the unit owner had moved to New York and, at the time of the loss, the Miami condominium was occupied solely by his tenants, he was not residing in the condominium unit at the time of the loss and accordingly not entitled to insurance coverage.



INVERSE CONDEMNATION CLAIM BY SUBSEQUENT HOMEOWNERS BARRED
Simon v. Deer Meadows Homeowners’ Ass’n, 44 Fla. L. Weekly D1763 (Fla. 1st DCA July 10, 2019)

In 1984, a developer/builder created a residential subdivision with a stormwater system designed to drain water from the streets into two ponds, one of which was located behind two residential lots.  The developer recorded a plat depicting the streets and easements – but not the pond – and the City of Jacksonville accepted the plat as well as the streets and easements.

The Simons, the fourth owners of one of the two lots, were advised prior to purchase that the lot owners maintained the ponds themselves and that the pond received storm water from the neighborhood.  Ten years after their purchase, the Simons asserted that the City was responsible to maintain the pond.  When the City refused, the Simons filed suit for inverse condemnation alleging that since the City owned or controlled the streets, or both, and that the streets were designed to discharge storm water into the pond which the City did not own, it was nonetheless using and taking the pond.



The Court ruled that the homeowners could not assert an inverse condemnation claim because even if the drainage of the water into the pond constituted a taking, such taking occurred before they purchased the property, knowing that a pond was on it, that the pond received neighborhood stormwater and that the prior owners had maintained it themselves.  Since the Simons purchased the property fully aware of the conditions, they were barred from claiming a governmental taking and seeking compensation.



SELLER RETAINS RIGHT TO COLLECT RENTAL INCOME FROM CELL TOWER LEASE
Harkless v. Laubhan, 44 Fla. L. Weekly D1792 (Fla. 2d DCA July 10, 2019)

Harkness, a property owner entered into a cell tower lease with Verizon which provided that he would receive rental income in exchange for allowing the cell phone company to build a tower on his property.  A memorandum of lease (but not the lease itself) was recorded in the public record.

Prior to erection of the tower, the property was sold twice with neither deed mentioning the lease which Harkless remained the owner of.  When the Laubhans purchased the property they were provided with a copy of the lease memorandum and a copy of a survey showing an easement and were further verbally advised by the Realtor of Harkless’ retention of the lease, including the right to income from it.  The Laubhans, however, did not follow up with an attorney or anyone else regarding the lease.



When litigation arose between Harkless and the Laubhans regarding the lease, the Second District Court of Appeal ruled in favor of Harkless finding that the Laubens were not bona fide purchasers and not entitled to receive income from the lease because the documents and information provided to them by the Realtor constituted implied notice of the retention of that right.  Their failure to consult an attorney despite having the ability to and after being advised in writing to do so was fatal to their later claim.



ASSOCIATION AWARDED FEES FOR LITIGATING FEES
Burton Fam. P’ship v. Luani Plaza, Inc., 44 Fla. L. Weekly D1720 (Fla. 3d DCA July 3, 2019)

After a decade of litigation between a unit owner and the governing community regarding whether he was allowed to convert two commercial units into affordable housing and to foreclose a lien for unpaid assessments, the court entered final judgment in favor of the community as well as an attorneys fees award which included fees incurred in litigating the amount of fees.  The “fees on fees” award was upheld on appeal because the applicable by-laws provided for recovery of fees “for litigating the issue of the amount of fees to be awarded” and the Court was required to enforce this provision.

Several recent cases involving community associations have demonstrated that courts will award “fees for litigating fees” where, as here, the governing documents provided for them.  Whether a basis exists for such an award in the governing documents can be an important consideration in deciding to pursue a litigation remedy as attorney fees can easily exceed the amount in controversy between the parties.




 

HOMEOWNERS’ CLAIM FOR DEFECTIVE ATTIC LADDER BARRED BY STATUTE OF REPOSE
Harrell v. Ryland Grp., 44 Fla. L. Weekly D2054 (Fla. 1st DCA August 13, 2019)

A homeowner was injured in June 2012 when he climbed an attic ladder to repair a leak and it collapsed beneath him.  Four years later, he sued the builder and original seller of the home for negligence, alleging that it had failed to ensure that the attic ladder was installed properly and failing to verify correct installation of the ladder prior to selling the home.

The builder contended that the installation of the ladder was an improvement to real property and that the homeowner’s claim was barred by Florida Statute §95.11(3)(c).  Section 95.11(3)(c) is a “statute of repose” which requires that any action based upon an improvement to real property must be brought within ten years.  It was undisputed that the original owners took possession of the property in May 2004, with the certificate of occupancy issued previously.



The question facing the Court was whether the attic ladder was an improvement to real property that would implicate the ten-year statute of repose.   The Court determined that the attic ladder was an addition to the property which cost labor and capital in light of its required installation and made the property more useful/valuable by providing more convenient access to another level of the home.  Therefore, the lawsuit was founded on the construction of improvement to real property and subject to Section 95.11(3)(c).  Since suit was not filed until June 2016, more than ten years after the original owners took possession in May 2004, the homeowner’s suit was time barred.



A statute of repose is different from a statute of limitations.  The statute of limitations generally begins when the cause of action accrues and bars a lawsuit from being filed after a set period of time.  The statute of repose begins at the occurrence of a specific event and extinguishes the right to file a lawsuit altogether after a set period of time, even before plaintiff has suffered injury.  Given the limitations of Section 95.11(3)(c), it is imperative to consult with experienced counsel when considering a claim based upon the design, planning, or construction of an improvement to real property.



Jed Frankel is a shareholder with Eisinger Law. He is a Florida Certified Circuit Mediator and is Board Certified in Condominium and Planned Development Law, as well as Civil Trial Law, by The Florida Bar. He focuses his practice on community association law, litigation and dispute resolution. He can be reached at jfrankel@eisingerlaw.com or 954-894-8000 x 301.