CODE COMPLIANCE: LIFE, LIBERTY AND THE PURSUIT OF HAPPINESS

FIRE! This warning is still feared, especially in multi-family housing. In seconds a smoldering item conflagrates.  Just a brief moment later, a room or office appears to explode. Unless you have experienced a fire or observed fire test films, the swiftness and ferocity of a room combusting cannot be imagined.

Once a fire is experienced, then the rational for strict fire codes is obvious. From counsel’s perspective, knowledge and enforcement of fire codes allows a client to achieve a primary goal, ensuring a safe environment and not being responsible for unnecessary and preventable injury or loss of life. For some, "doing the right thing" is not enough. For them, the law, specifically the threat of civil or criminal action is necessary to ensure safety.

Disregarding fire codes is illustrated by the recent decision of Grant v. Thornton, 25 Fla. L. Weekly D26, (Fla. 2nd DCA, December 22, 1999.) Thornton and a trust leased an apartment to Grant. The apartment's front door utilized a "double cylinder deadbolt." This type of lock allowed Grant to open the door only by placing the right key in the lock and unlocking the door.

A fire began. Grant asserted that he could not reach the key which was necessary to open the door. To escape, he jumped out of a window. He asserted that as a result he was injured. Grant filed suit against the apartment building owners. He claimed that the double cylinder locks violated the Manatee County building and fire codes. The code stated, in part:

Required exit doors shall be operable form the inside without the use of a key, tool, special knowledge or effort. Manually operated flush bolts or surface bolts are prohibited. All hardware must be direct acting requiring no more than one operation. Double cylinder dead bolts, requiring a key for operation on both sides, are prohibited on required means of egress doors unless the locking device is provided with a key which cannot be removed when the door is locked from the inside.

In addition, Florida's Landlord-Tenant Act provides in pertinent part in §§83.51 Fla. Stat. as follows:

(1) The landlord at all times during the tenancy shall:

(a) Comply with the requirements of applicable building, housing, and health codes; or

(b) Where there are no applicable building, housing, or health codes, maintain the roofs, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition.  However, the landlord shall not be required to maintain a mobile home or other structure owned by the tenant. 

The owners defended, in part arguing that Grant had not given them notice of the danger. The trial court agreed with the owners and dismissed the case.

The appeals court reversed the dismissal. Under these facts, the issue of whether the landlord was negligent was a fact for the jury to decide. Notice was irrelevant because the owners provided keys for the tenant's use. The fact that Thornton claimed no knowledge of the building codes constituted "no defense with respect to the facts of this case."

Associations responsible for doors, especially condominium, associations, should ensure that locking systems follow code requirements. In all probability, the municipality or county where you live will have similar provisions to those in Manatee county's code. This is because most municipalities and counties adopt a particular version of the National Fire Association Life Safety Codes, as had Manatee county. For example, both West Palm and Boca Raton, Florida have adopted versions of the code.

Exactly what is the extent of the law in your jurisdiction requires a specific inquiry as well as a determination of occupancy and use. Different levels of occupancy, residential, apartment and high rise, each have their own provisions according to the fire department. When changing residential locking systems, check the appropriate fire code.

COVENANT ENFORCEMENT: IF IT IS IMPORTANT, THEN ACT; IF NOT, THEN DO NOT!

How often do you recognize that if something is important, then you act promptly. If something is of no consequence, then it does not get done. Generally the courts have acted in similar fashion. As discussed in the firm's August, 1997 Memorandum to Clients, delaying enforcing one's rights may bar claims.

How long can one delay enforcing use restrictions? This issue was addressed in a novel way in the decision of Ferola v. Blue Reef Holding Corp, 719 So. 2d 389 (Fla. 4th DCA 1998). The Ferolas claimed that their subdivision developer violated the subdivision's covenants and restrictions by constructing townhouses on a recreation area. The Ferolas filed suit against many defendants seeking injunctive and declaratory relief requiring compliance with the covenants. The trial court dismissed the Ferolas' claims.

The appellate court affirmed the dismissal, preventing the Ferolas from proceeding with their injunctive relief claim. The covenants and restrictions were treated as a contract. The appellate court noted that Florida's statute of limitations, specifically §95.11(5)(a)(1995), requires a claim to force a contract to be performed in a specific manner must be filed within one year of when the claim arose. Because the time period had passed, the injunction action was barred.

While the enforcement effort was not made by an association, the public should expect that this decision would be followed by other courts. Thus, claims for injunctive relief to mandate covenant compliance should be filed within one year of when an association knows or should have known of a violation. While there are a number of actual situations that may be "held" or delay the application of a statute of limitations, Associations should take steps whenever possible to file claims on a timely basis.

While at first glance the appellate court's action may seem harsh, it actually is practical. If a use restriction is worth enforcing, then an association should provide notice of a violation within a relatively short period of time. This decision may force directors and managers to confront an issue rather than allowing a bad situation to fester. Of course, if an association does not desire to enforce a use restriction, then the association should take action to amend or delete the restriction.

OFFICE NOTES

Please welcome Patricia Schaefer. Patricia rejoins the firm. She will primarily be providing support regarding lien foreclosure actions. Please welcome Patricia!