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January 2005
CORPORATE PROCEDURES: TIME TO UPDATE RECORDS
The new year brings with it many promises of
change. It also brings with it corporate responsibility for community
associations. The following are a few of the annual end of year legal
requirements which must be met by Florida community associations.
Questions and Answers Sheet. New AFrequently
Asked Questions and Answers@
Sheets must be updated annually. Florida law again requires
condominium and cooperative associations to have the information
available for owners and potential purchasers. Failure to have
up-to-date information may subject a condominium or cooperative
association to significant liability involving claims over undisclosed
or wrong information. Remember, unit owners are now required to
provide prospective purchasers with the Frequently Asked Questions and
Answers Sheet.
Disclosure Form. Although homeowners =
associations are not required to annually update a Frequently Asked
Questions and Answers Sheet, it is still a good idea to prepare a Adisclosure
summary.@
Florida law now requires owners who are selling their homeowners=
association governed property to provide prospective purchasers with a
disclosure summary regarding the association before executing their
contract for sale.
Annual Report and Fee. The Florida Business
Corporation Act and the Florida-Not-For-Profit Corporation Act require
all corporations, including those corporations which are condominiums,
cooperatives and homeowners =
associations to file an annual report and to pay an annual fee. By the
middle of January, start looking for the Annual Report form from the
Florida Department of State, Division of Corporations. Read the form
carefully and follow the instructions. The firm=s
address as registered agent should be updated to reflect the firm=s
current address. Most importantly, file the form and pay the fees on
time!
Records. The question always arises as to how
long records must be kept. The statutes provide only minimum time
periods for keeping records. Nonetheless, some items such as minutes
are recommended to be kept indefinitely to provide a history. Other
items, such as documents relating to pending or anticipated claims
must be kept until claims are resolved.
TORTS: NOT TRIMMING FOLIAGE CAN LEAD TO
LIABILITY
Do you own land which is adjacent to a public road?
Is the property overgrown with bushes and trees? If a motorist is
injured because he or she could not see other cars because his or her
view was obstructed by the foliage on your property, you may find
yourself in a heap of trouble.
A Florida appellate court recently ruled that an
owner of private property owes a duty to passing motorists caused by
foliage on the owner =s
property. In Davis v. Dollar Rent A Car Systems, Inc., 29 Fla.
L. Weekly D2627 (Fla. 5th DCA, November 17, 2004), Cecilia
Davis was hit broadside by a dump truck as she drove through an
intersection. Davis died as a result of the injuries she sustained in
the accident. Davis=
mother sued several defendants, including the owner of private
non-commercial property adjacent to the intersection. The complaint
alleged that the property owner owed a duty to motorists passing
through the intersection so that the foliage would not block the
motorists=
view of the intersection.
The property owner argued that she did not owe a
duty of care to Davis even though the foliage obscured the view of
motorists. The trial court agreed and entered judgment in favor of the
property owner without going to trial. The trial court ruled there is
no common law duty owed by a private landowner whose property obscures
the view of motorists on an adjacent intersection.
The Florida appellate court disagreed and reversed
the decision of the trial court. The court explained that Aduty
of care@
is an essential element in all negligence actions. To determine
whether the defendant owed a duty of care to the plaintiff, the court
must focus on whether the defendant=s
conduct created a Aforeseeable
zone of risk@
that posed a general harm to others.
The court pointed out that the property adjacent to
the intersection was overgrown with bushes and trees which obscured
the view for westbound traffic for up to 12 feet from the
intersection. AWe
... conclude ... that the foreseeable zone of risk standard must be
applied to determine whether a duty of care was owed by a private
landowner to a motorist injured in an accident allegedly caused by
foliage on the owner=s
property that obstructed the motorist=s
view of the intersection,@
the court said. The court concluded the property owner owed a duty of
care to motorists.
Having concluded the property owner owed a duty of
care to passing motorists, the court explained that judgment should
not have been entered for the property owner before going to trial.
However, the court specifically stated it was expressing no opinion as
to the merits of the claim but rather, leaving that up to the jury. AWhether
the foliage was the proximate cause of the accident, what the standard
of care should be in the instant case, and whether the decedent was
solely at fault are matters that should be left either to the jury or
to appropriate pretrial motions presented to the trial court.@
The Davis case emphasizes the importance of
properly maintaining your property if it does in fact border on public
roads. Due to our Florida climate, vegetation grows non-stop year
round. No one wants to cause an accident and no one wants to be held
liable for an accident especially when it can so easily be avoided.
Take the time to check out your property to make sure the foliage has
not crept too close to the road.
Community associations may also be liable for damages resulting
from landscaping crossing internal roadways. To limit potential
problems, associations should always comply with the landscaping
maintenance requirements as set forth in their covenants. Regular
property inspections and maintenance follow-up are procedures that
will not only help avoid claims, but should make your community a
safer and better place to live.
FIRM NEWS
In observance of national holidays, the firm’s
office will be closed on Friday, December 31, 2004 and Monday, January
17, 2005. The firm wishes everyone a healthy and happy New Year.
This information is provided for public information
purposes only and is provided without obligation or fee. It is
distributed to the firm's association clients to provide a general
notice of recent legal changes. This information is not to be
considered as legal advice. The changes in the law may not have been
reviewed by Florida courts and may be subject to further challenge.
Before taking any action you are urged to consult with counsel to
ensure that your legal rights are protected.
© 2004 by Gelfand & Arpe, P.A.
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