Gelfand & Arpe, P. A.

 

Memorandum To Clients

January 2006

Vol. XVI No. 1

HUD INVITES 55 AND OVER COMMUNITIES TO WELCOME

KATRINA AND RITA EVACUEES

Last month, in response to inquiries from A55 and over@ communities for older persons, the U.S. Department of Housing and Urban Development (AHUD@) issued a letter stating that 55 and over communities may house Katrina and Rita evacuees and not lose their 55 and over status.

As a background, the Fair Housing Amendments Act of 1968 (the Act) permits certain communities to discriminate based on familial status if those communities can demonstrate an intent to provide housing for older persons. These communities are referred to as A55 and over communities.@ To be eligible to be a 55 and over community, the Act requires that 80 percent of all occupied households within the community be occupied by at least one person 55 years of age or older. Thus, only 20 percent could be occupied by persons under age 55.

To encourage 55 and over communities to house Katrina and Rita evacuees, the Department will not count evacuee households towards the 80/20 percent calculations. Thus, housing for evacuees would be treated as unoccupied for purposes of the calculations so long as the community admits the evacuees regardless of familial status. For example, if a community decided to admit evacuees, but only if they did not have any children, then the admitted evacuees would be counted in the 80/20 percent calculations.

Associations are not required to provide evacuees with special financial considerations in the sale or rental of units. Associations may require evacuees to meet the same qualifications as non-evacuees. Note that HUD=s policy has not been tested by the courts nor may the policy supercede a community=s more stringent restrictions. If your 55 and over community is interested in housing evacuees, then you may access HUD=s letter and questions and answers at http://www.hud.gov/offices/fheo/library/HOPA-HurricaneQnAs.pdf

TORTS: LANDLORD MAY BE HELD LIABLE FOR PIT BULL ATTACK

OCCURRING OFF ITS PREMISES

Do you live in a community with many dogs? Has anyone in your community been attacked by a dog living in the community? An association may face liability for injuries caused by dangerous dogs.

In a recent decision which could extend to Florida community associations, a Florida appellate court ruled a landlord could be liable for injuries caused to a tenant=s child by another tenant=s pit bull even though the injuries occurred off of the landlord=s property. In Ramirez v. M.L. Management Co., Inc., 30 Fla. L. Weekly D2710 (Fla. 4th DCA, November 30, 2006), Jemma Ramirez and her children lived in Lake Villas, an apartment complex owned by M.L. Management. Although Lake Villas allowed pets, it prohibited pit bulls. Despite this prohibition, one of the tenants of Lake Villas owned two pit bulls.

The apartment complex was located next to a park owned by the Town of Pembroke Park. Even though the park was owned by the Town, Lake Villas advertised the park as one of the apartment complex=s amenities. While playing in the park, the pit bulls owned by a tenant allegedly attacked and severely injured one of Ramirez=s children.

Ramirez sued M.L. Management alleging M.L. Management violated its duty to her by allowing a known danger, the pit bulls, to remain on its premises. The trial court granted judgment to the owner of the apartment complex because the accident occurred in the park. The trial court concluded the landlord could not be held liable for injuries which occurred off of the leased premises. The appellate court reversed the decision of the trial court so that a trial could be held. The appellate court determined that where a special relationship exists, such as a business and its invitee or a landlord and its tenant, a duty may exist to warn of danger even if the injury does not occur on the premises.

A[I]n this case there was evidence from which a jury could conclude that the landlord >extended its operation= to the park, by advertising it as an amenity next to the complex and inviting its tenants to take advantage of it as part of the amenities,@ the court wrote. ATherefore, the landlord=s duty to the tenants could extend beyond the boundaries of the apartment complex.@

The court recognized that a landlord has a duty to protect its tenants on the property from vicious dogs that the landlord knows about. In Rameriz, the landlord recognized the danger pit bulls posed to tenants because it prohibited pit bulls from the apartment complex. The landlord=s duty to protect the tenants from dangerous dogs applies beyond the premises to those areas that the landlord extends its business interests, such as a park.

Communities may want to reevaluate their pet restrictions. If you prohibit dogs or if you allow dogs but prohibit certain breeds, make sure you follow up any violations of the rules with proper enforcement.

CORPORATE PROCEDURES: RECORDS FOR THE NEW YEAR

With the start of a new year, Florida community associations must follow certain legal requirements, including the following:

Questions and Answers Sheet/Disclosure Summary. Florida law requires condominium and cooperative associations to prepare a AFrequently Asked Questions and Answers@ sheet which must be updated annually and furnished to potential purchasers. For homeowners= associations, Florida law requires owners who are selling their lots to provide prospective purchasers with a ADisclosure Summary@ before executing the contract for sale and for the homeowner=s association to keep a Disclosure Summary as part of its records. Failure to provide the disclosure summary may entitle the purchaser to void the contract prior to closing.

Annual Report and Fees. 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 pay an annual fee. The Florida Department of State, Division of Corporations, is now providing notice of the filing requirement by postcard which may easily be overlooked or lost in the mail if the association=s address has changed.

It is imperative that associations ensure that the annual report is completed and the appropriate fee submitted timely. Failure to file an annual report may result in the Division administratively dissolving the corporation and requiring the association to apply for reinstatement for an additional fee and/or creating additional liability for an association and its officers and directors.

This information is provided for general information purposes only, may no be relied upon and is provided without obligation or fee. It is distributed to the firm's association clients to provide a general comment of recent legal changes. This information is not legal advice, representation counsel or opinion. 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.

8 2005 by Gelfand & Arpe, P.A.