April 2002

MEMORANDUM TO CLIENTS

BAD DOG: NO FREE BITES

Who did not cringe after reading news accounts of the San Francisco woman mauled to death by a 120 pound dog? It should come as no surprise that a jury convicted the woman whose dog attacked and killed a neighbor of second-degree murder and found her husband guilty of involuntary manslaughter even though he was not present at the time of the attack. This case should serve as a warning to all community associations. There are "no free bites."

This case drew national attention due to the brutality of the attack which occurred while the owner was bringing the dog in from a walk. The dog attacked the victim outside the hallway door of her apartment. The evidence at trial showed the victim suffered more than 70 bites and lacerations all over her body. She died later that evening at a hospital. The prosecution maintained that the defendants were irresponsible owners of dangerous pets and had ignored numerous instances when the dogs threatened other people.

The firm’s November 1996 Memorandum to Clients addressed potential Florida community association liability for dog bites. Based on two decisions, Barrwood Homeowners’ Association, Inc. v. Maser, 675 So. 2d 983 (Fla. 4^th DCA 1996) and Sanzare v. Varesi, 681 So. 2d 785 (Fla. 4^th DCA 1996), associations were put on notice that they could be found liable for dog bites. These cases held that Florida homeowners’ associations may be liable when a dog bites someone within the community even though the association did not own the dog. These rulings most likely will apply to Florida condominium and cooperative associations; thus, the decisions are important to all Florida community associations and their members.

Unfortunately, there is little in these decisions to guide associations as to what constitutes a "bad dog." Thus, it is crucial for any association officer, director, employee or agent who has knowledge of a vicious dog to transmit the information to an appropriate association representative. The association should then take steps to prevent injury by a vicious dog. This may entail taking proper steps to have the dog removed from the premises. If there is the threat of an immediate danger, the "dog catcher" or even law enforcement personnel should be called. At a minimum, associations should educate residents about the importance of securing their dogs outside their homes.

Pet owners may soon find their dogs blacklisted. Some home insurers are refusing to insure homes where certain breeds are kept. High on the list of banned dogs are Rottweilers, Dobermans, pit bulls, Presa Canarios, chows and wolf hybrids.

TAXATION: JUSTICE FOR "TAXPAYERS FOR FAIRNESS, INC."

Finally, justice will be served to the Taxpayers for Fairness, Inc. On March 14, 2002, Governor Bush signed HB 173, the Documentary Stamp Bill, hopefully putting an end to its litigation. Michael Gelfand, as Vice Chairman of The Florida Bar’s Condominium and Planned Development Committee spearheaded a drive to have the Real Property, Probate and Trust Law Section hire a lobbyist to pass the bill. Assigned Chapter No. 2002-8, HB 173 was one of the first the Governor signed into law.

As the firm summarized in its December 2000 and February 2001 Memorandum to Clients, "Taxpayers" sued many community associations alleging that foreclosure sale purchasers did not pay the correct amount of documentary stamp taxes on the sales. "Taxpayers" alleged documentary stamps had to be paid on the total amount of any mortgages encumbering the property at sale, not just on the price paid at the sale.

Responding to the uncertainty created by these lawsuits, the Florida Legislature amended Florida Statute §201.02 by clarifying that the amount of documentary tax be computed on the highest bid received for property at a foreclosure sale. The statute reads, "This subsection is intended to clarify existing law and shall be applied retroactively." Thus, purchasers at foreclosure sales held prior to the legislation’s enactment are intended to be protected.

The 2002 Legislature passed a few other community association related measures. These include:

SB 694 - The "Glitch Bill" clarifies particular procedural issues, provides additional efforts to ensure that condominium associations can amend "documents," and provides for expedited arbitration of election disputes.

HB 261 - The "Transportation Bill" contains a provision permitting utility vehicles to be operated by homeowner associations for general maintenance, security, and landscape purposes on public roads provided that they comply with certain requirements.

SB 148 - Permits the display of one portable, removable American flag in a homeowners association regardless of restrictions so long is it is displayed in a respectful way.

At press time, these bills are awaiting the Governor’s signature. Next month, we expect to provide further detail of these bills if signed by the Governor.

FIRM NEWS

For the second year in a row, the Chautauqua Institute has invited Michael Gelfand to teach a course during the Institute’s summer Special Studies Session. Mr. Gelfand will teach "Condominium/Homeowner/Cooperative Association Decision Making and Participation" during the second week of the Session commencing July 1, 2002. For information on enrollment, contact the Institute by calling (716) 357-6255, or visit its website at www.ciweb.org.

© 2002 by Gelfand & Arpe, P.A.