Month: February 2011

Community Association Liability for Abandoned Homes

Posted on by Gerstin

1.     Three main types of community associations

a.     Mandatory homeowner associations

b.     Non mandatory homeowner associations

c.      Condominium associations

2.     Abandoned homes & association liability

a.     Most liability cases relate to children trespassing in an abandoned home. However, other sources of liability are prevalent in Florida:

i.      Open swimming pools, no pool fence and/or no outer fence

ii.      Partial open construction

iii.      Construction equipment on abandoned home premises

iv.      Mold spreading to occupied dwellings (condo. and townhomes)

v.      Unsecured holes on land

b.     Florida law focuses primarily on landowner of property where an injury occurred. Same standards may apply to community associations.

i.     Owner is liable for trespassers being hurt in two instances:

1.     As to adults. . .owner knew of a danger that was hidden and failed to take reasonable safeguards.

2.     As to children:

a.     The home or premises contain a danger that may be obvious to adults but to a child the danger would not be appreciated.

b.     Owners of abandoned homes are not optimal “targets” of lawsuits. Community associations are optimal targets.

3.     Non Mandatory Homeowner Associations

a.     If the subject home is not a member, liability rarely exists.

b.     The lack of association control over common areas, maintenance of homes and the conduct of residents further support the absence of liability.

c.     If the unincorporated association or a person undertakes a repair, it may be trespass.

d.     Regardless of association status or if an individual undertakes a repair, if a repair is undertaken it must be done right.

4.     Mandatory Homeowner Associations

a.     Typically not the owner of the abandoned home or land but liability may still exist. Same standards as in 2(b) above.

b.     Factors increasing liability

i.     The homeowners’ association maintains and/or controls the front or back yard.

ii.     The homeowners’ association controls all of the land leading up to the front or back of the home.

iii.     The homeowners’ association controls certain aspects of  construction such as when and how.

iv.     Children living in the homeowners’ association.

v.     Children are present near the association (adjoining a school).

vi.     The association has undertaken similar safeguards with other homes.

vii.     Is there an “attractive nuisance” or a hidden danger on an area that is traversed leading to the home and/or under the association’s control.

viii.     Has the association undertaken any action with relation to safeguarding the home already.

c.     Safeguards

i.     Do not look for problems, typically it is unnecessary to enter an abandoned home.

ii.     Once the homeowners’ association decides to act it must complete its act with diligence and responsibly. Therefore, consult your attorney to determine if action is necessary. Each instance is fact specific and not every instance of an abandoned home requires action.

iii.     A broken fence adjoining association controlled land should be secured and properly marked as a danger.

iv.     Obvious dangers such as open holes on the home’s premises or incomplete construction visible from the street should be secured.

v.     Consider securing pools, contact both the owner and the bank, if no response. Depending on the situation, draining the pool could be dangerous.

vi.     Have the association’s attorney diligently contact the bank and owner. The attorney should also track the foreclosure so the new owner can be notified immediately of the problems.

5.     Condominiums

a.     Condos. have the statutory right to enter a unit if the unit’s condition is posing a danger to the other units.

b.     Condo. owners are required to abide by a condo. association’s request to maintain a copy of their key.

c.     If an abandoned condominium presents  a danger to the other units, residents and/or the general public who may not appreciate the danger, the unit should be secured.

1.     The doors and windows  should be locked.

2.     Mail should be not be allowed to accumulate.

3.     Contact the bank and the former owner to put them on notice of the need for power to the unit to stop mold from spreading.

4.     The association’s lawyer should ensure the bank’s foreclosure process is moving timely .

5.     Contact the bank or new owner after the foreclosure sale and inform them of the problems.

6.     With a bank’s failure to respond or a slow foreclosure process, association’s need to consider having power supplied to the unit and then back billing a new unit owner or the bank.

6.     Insurance

a.     Each insurance policy is different, abandoned home liability typically not covered by E & O without a rider.

b.     Policy review by attorney and insurance agent recommended.

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2011 Community Association Pending Legislation

Posted on by Gerstin

The 2011 Florida Legislative session does not begin until March. Not one to wait, legislators have already begun by filing two bills that directly affect community associations. One of these bills is a so called “Glitch Bill” (SB 530) designed to fix the unintended consequences and mistakes in the bills that passed in 2010. The second bill, a revival of the bill vetoed by Governor Crist limiting the liability of design professionals, is problematic for community associations.

The Glitch Bill (SB 530)

If passed, SB530:

1. Maintains the confidentiality of personnel records but allow owners to inspect employment agreements and financial records that disclose employee compensation.

2. Owners will have a choice to “opt-in” to the disclosure of their contact information that was protected by legislation passed in 2010.

3. Management fees incurred in collecting delinquencies can be included as part of the total amount owed on a delinquent owner’s lien.

4. Similar to homeowner associations, condominium associations are granted the authority to hold a closed door meeting, without their attorney present, for the discussion of personnel matters.

5. Tenants of delinquent owners will be required to remit their rent payments to the association until all, past and present, amounts owed to the association are paid in full.

6. Procedural guidance is given to fill the “gaps” in last year’s legislation regarding suspending use and voting rights of delinquent owners.

7. A majority vote in the affirmative will be required before a condominium association may enter into certain agreements to acquire leaseholds, memberships or similar interests.

8. Communications services contracts for bulk television, internet services, etc. can be canceled by a majority of the voting interest present at a regular or special meeting of the association. Any member can propose to cancel the contract, once. If the motion fails the contract is deemed ratified for its stated term.

Design Professionals Liability Bill

In 2010, Governor Crist vetoed the Design Professionals Limited Liability bill. Nevertheless, the bill is back and has been re-submitted to the legislature for passage. If passed, the Design Professionals Liability Bill would:

1. Excuse design professionals (engineers, architects, etc.) from liability for mistakes they make in performing their jobs.

a. Instead of being liable, and having to pay, for their own mistakes, community associations would pay for the damages caused by a design professional. For example, if an architect’s mistake caused a balcony to fail, the association would not be able to seek damages beyond the cost of the architect’s work (essentially a refund) as compared to seeking compensation for all the damages caused by the architect (the actual damaged balcony).

2. The design professional liability protection contained in this bill are greater than the protections afforded to all other professionals ranging from lawyers to doctors.