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Insider Real Estate and Community Association Law Update

November, 2019







GOOGLE MAPS PHOTOGRAPH NOT ADMISSIBLE AS EVIDENCE



City of Miami v. Kho, 44 Fla. L. Weekly D2555 (Fla. 3d DCA October 16, 2019)



Photographic evidence often plays a critical role at trial. Google and other services make photographs available on their sites for public use, at no charge. As this recent case illustrates, the rules of evidence may preclude the use of such photographs at trial.



Ms. Kho sued the City of Miami for negligence after she tripped and fell on a City sidewalk. Kho claimed that the sidewalk had an asphalt patch one-and-a-quarter inches lower than the adjoining concrete slab and that this constituted a “dangerous and defective condition” which was the cause of her fall.



At trial, Ms. Kho was unable to prove that the City had actual knowledge of the condition of the sidewalk and sought to prove constructive knowledge using a Google Maps photograph of the sidewalk at issue, dated three years prior to her trip and fall. Over the City’s objection, the Judge admitted the photograph into evidence without any supporting testimony. The jury found the City liable and awarded Kho $90,000.00.



The City appealed and Florida’s Third District Court of Appeal found that the Google Maps photograph was not authenticated as required by Florida’s Evidence Code and therefore improperly admitted into evidence.  Without the photograph, there was insufficient evidence to find the City liable. Accordingly, the Third District ordered final judgment in favor of the City.







CONDOMINIUM EXEMPT FROM HOTEL REGISTRATION REQUIREMENTS



Soho Realty, LLC v. Alexander Condo. Ass’n, 44 Fla. L. Weekly D2498 (Fla. 3d DCA October 10, 2019)



Condominiums which contain hotel components are frequently involved in disputes between hotel operators, unit owners and associations. The Alexander Condominium is a mixed-use condominium consisting or residential and commercial units.  While an overwhelming majority of the residential units are utilized for transient purposes, the Condominium is also the home to numerous permanent residents.  Units can be rented through the operator of the on-site hotel or by unit owners through other means.



The hotel operator filed suit against the condominium association alleging that as a “suite hotel” the Alexander was subject to certain front-desk registration requirements for transient guests required by the local municipal code and that the condominium association improperly failed to enforce those requirements.  In defending the suit, the condominium association claimed it was exempt from those requirements.



The condominium association presented the court with an unrefuted affidavit of its property manager attesting that a number of units at the Alexander are used as permanent residences.  The Judge determined that since all residents of the Alexander do not occupy hotel units the Condominium was neither a “hotel,” nor a “suite hotel” within the definitions of the local municipal ordinance and ruled in favor of the Association.  Accordingly, the Alexander is not subject to the hotel registration requirements and unit owners may continue to rent their units directly.







COURT REFUSES TO ENJOIN CONDOMINIUM ASSOCIATION



VME Grp. Int’l, Ltd. Liab. Co. v. Grand Condo. Ass’n, 44 Fla. L. Weekly D2420 (Fla. 3d DCA September 25, 2019)



The Grand is a mixed-use condominium that has been the subject of a number of important appellate decisions involving Florida condominium law including United Grand Condo. Owners, Inc. v. Grand Condo. Ass’n, 929 So. 2d 24 (Fla. 3d DCA 2006),  Grand Condo. Ass’n v. Cohn, 970 So. 2d 365 (Fla. 3d DCA 2007), and Cohn v. Grand Condo. Ass’n, 62 So. 3d 1120 (Fla. 2011).



When an explosion in the short-tern rental market arising out of the popularity and accessibility of Airbnb presented numerous challenges relating to regulation and security, the Grand Condominium Association enacted parking garage regulations and occupancy limits based on the number of bedrooms in a unit.  Access to the condominium was further controlled by fingerprint or bracelet.



The plaintiffs complained that the measures adopted by the Association did not apply to the on-site hotel and sought an injunction to prevent the Association from applying those measures if not applied to all members and hotel guests.  At an evidentiary hearing, the Association presented evidence that its Board has adopted the measures in question to address serious public safety issues, including preventing the entry of unidentified individuals into the residential area of the condominium.  The Judge denied the motion for temporary injunction, allowing the Association’s regulations to remain in effect.







FORMER UNIT OWNER AWARDED ATTORNEYS FEES AFTER ASSOCIATION’S CASE DISMISSED



Tison v. Clairmont Condo. F Ass’n, No. 4D19-117, 2019 Fla. App. LEXIS 16769 (4th DCA Nov. 6, 2019)



Attorneys fees are frequently awarded to the prevailing party in litigation involving unit owners and their association. But what happens when a unit owner sells during the course of the litigation? That question was answered in a recent decision by Florida’s Fourth District Court of Appeal.



After an association filed a lawsuit against the two title owners of a unit to recover unpaid assessments, the unit owners denied the allegations and asserted their right to recover attorneys fees and costs. The two unit owners sold the unit to a third party.



Over a year passed without any activity in the case, and the Judge dismissed it for lack of prosecution. One of the former unit owner then filed a motion for prevailing party attorneys fess pursuant to the governing declaration of condominium and Florida Statute §718.106. The Judge denied the motion because the unit owner had sold his interest making him a former unit owner not entitled to recover his fees.



The decision was appealed and the Fourth District reversed the Judge finding that the relevant question was not whether he was a unit owner at the time he filed the fee motion but whether he was a unit owner when the cause of action for unpaid assessments accrued. Accordingly the unit owner will receive an award for his reasonable attorneys fees and costs incurred.