July 2003

MEMORANDUM TO CLIENTS

REAL PROPERTY: DIGGERS BEWARE OF WHAT LURCHES BELOW

What happens if someone digs on property maintained by an association and bursts an irrigation pipe? Whether the association can recover damages as a result of the burst pipe, collapsed sewer or cut electric line may depend on whether the association is a member of Sunshine State One Call of Florida, Inc.

Sunshine State One Call is a not for profit corporation formed in 1993 pursuant to Florida Statutes Chapter 556 known as the "Underground Facility Damage Prevention and Safety Act." Florida law requires every operator of an underground facility such as electric, cable, water or gas lines to become a "member" of the corporation. The corporation was established to help prevent damage to underground facilities and allocate the risk of loss when there is an accident.

Any person performing excavation or demolition operations, that is, any change to the earth’s surface intended to change the grade or level of land, including most digging activities, must notify Sunshine State One Call. The notification must be made at least two but no more than five business days before beginning any excavation. Sunshine State One Call then notifies all members with underground facilities near the excavation site. The homeowner of a single family residential property is exempt from the notification requirement if the homeowner digs no deeper than ten inches on his or her own property and does not dig on an easement or a right-of-way. This exemption does not apply to most community associations.

After receiving notification of the excavation, members have two business days to locate underground facilities at the proposed site or notify the excavator that there are no underground facilities in the area. Members are responsible for locating and marking the underground facilities with paint, flags or stakes. Do not remove these markers until the job is completed! These markers are crucial for letting you know where not to dig.

If the owner of the underground facility fails to become a member of the corporation, an excavator who makes the required call will have no way of knowing that the underground facility exists. If the underground facility is damaged, then the owner of the underground facility cannot sue the excavator for damages. On the other hand, anyone who begins digging without first calling Sunshine State One Call and damages an underground facility of a member can be liable for damages up to $500,000!

For more information on how to become a member of Sunshine State One Call of Florida or to notify members of your intention to dig, contact your association’s counsel.

CODE ENFORCEMENT: "PARKED" MAY NOT EQUAL "STORAGE"

What happens if a homeowner leaves a boat in his or her driveway even though the Association’s restrictions prohibit storing boats in driveways? Whether the Association can fine a homeowner for not abiding by the restrictions may depend on how long the boat remains in the driveway.

A recent Florida decision points out the importance of drafting documents with clarity. In Castro v. Miami-Dade County Code Enforcement, 28 Fla. L. Weekly D1168 (Fla. 3^rd DCA, May 14, 2003), the appellate court ruled that the trial court failed to apply the correct law, i.e. the plain meaning rule regarding the definition of "storage." The county ticketed homeowners for "storing" a boat illegally in front of their house on two separate days.

The county code provision which the homeowners allegedly violated allowed boat storage in residential areas, but limited such storage to the rear of the property. The homeowners admitted that the boat was "parked" in front of their home for two nights but claimed that it was not "in storage." The code did not define the term "storage."

In order to determine the plain meaning of the word "storage," the court looked at a dictionary. The American Heritage Dictionary (1979) defined "storage" as "the act of storing goods, as in a warehouse for safekeeping." Using the dictionary definition, the court pointed out that the county code appeared to intend for boats to be placed away for a considerable period, not for a brief time. The court concluded that the homeowners’ boat was not "stored" in their front yard; rather, it was parked in their front yard.

While sailors will argue that boats are never "parked," this decision emphasizes the importance of drafting Association documents clearly and concisely. If a dispute arises, a court is likely to give words their plain and ordinary meaning. If you have any questions regarding the plain and ordinary meaning of any words in the Association’s documents, contact your attorney.

LEGISLATIVE UPDATE: PART II

Following the firm’s June Memorandum to Clients, Governor Bush signed many items into law. The bills summarized by the firm last month which became law include:

Marketable Record Title, Homeowners Association Powers. Florida Laws 2003-79 (HB 861).

Corporate Procedure, Condominium Insurance, Condominium and Cooperative Resale Disclosures, Condominium Fire Sprinklers, Enforcement. Florida Laws 2003-14 (SB 592).

Flags. Florida Laws 2003-28 (SB 260).

The firm’s West Palm Beach office will be closed on Friday, July 4, 2003 in observance of the national holiday. We wish everyone a "Happy Independence Day"!

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.

© 2003 by Gelfand & Arpe, P.A.