|
October 1, 1995 MEMORANDUM TO CLIENTS
SWIM AT YOUR OWN RISK A step too far. A parent whose attention is diverted. Suddenly without warning, a calamity. First, there is grieving. Then, blame is cast. This tragedy is replayed with catastrophic results at swimming pools, beaches and lakes across the state. When there is a loss, the property owner is usually blamed. Frequently blame leads to a legal claim for damages. If someone drowns in an association lake, then the victim's family may seek money from the association. Because of Florida's particular circumstances, Florida has a disproportionate number of drownings, and drowning related disputes. Florida has a unique location, largely surrounded by water. Florida has a unique geology, sitting largely upon aquifers with numerous openings into lakes and drains into creeks. Florida has unique weather, contributing to year-round water sports at pools and beaches. The attribute that attracts new residents is the attribute that is most dangerous, readily accessible water. The line of Florida appellate decisions concerning drowning claims was extended by the recent opinion in Navarro v. Country Village Homeowners' Association, 20 Fla. L. Weekly D911 (Fla. 3d DCA, April 12, 1995). In this dispute a Country Village association resident, Mr. Navarro, drowned after stepping into a lake. The lake contained a steep and deep drop-off, where water depth drastically changed from shallow water to deep water. The lake was owned, operated and maintained by the Country Village association. The association posted signs stating "Deep Water" and "Swim at Your Own Risk." The surviving spouse, Ms. Navarro, sued the association, seeking money for the wrongful death of her husband. Ms. Navarro argued that the association failed to keep the lake in a safe condition and failed to properly warn residents about the sudden drop-off. The appellate court disagreed stating that the lake's deep water drop-off was characteristic of lakes; therefore the drop-off was not deemed to be a concealed dangerous condition. The Court concluded that the association was not liable for Mr. Navarro's death. This decision follows a similar conclusion of last year in Adika v. Beekman Towers, Inc., 633 So. 2d 1170 (Fla. 3d DCA 1994). A hotel guest drowned at the public beach adjacent to a hotel. The hotel was not liable for the death because the hotel had no duty to warn guests of naturally occurring conditions off of a public beach. Note that property owners and operators are not immune from liability if they breach a specific or general duty. Not long ago another Florida appellate court dealt with such a situation in Gilbertson v. Lennar Homes, Inc., 629 So. 2d 1029 (Fla. 4th DCA 1993). There a court ruled that a developer may be liable for a drowning by failing to comply with a code requirement, limiting the steepness of a lake bank. Though a property owner or association may not have a legal duty to warn of danger, most will rise to the moral duty to warn if they believe there is a danger. For protection against claims, consultation with an insurance agent for appropriate coverage is appropriate. For associations taking over from developer control, an engineer is generally consulated to ensure that the common areas or elements are properly built and maintained.
RULES PREVENTING OVERCROWDING MAY BE DISCRIMINATION
The Fair Housing Amendments Act of 1988 ("FHA") affects more than just discrimination concerning the selling or leasing of property. The FHA regulates association rules. The regulation especially impacts association rules based upon familial status. Attempting to limit the number of a home's occupants based upon familial status may violate the FHA. The FHA permits "reasonable local, State or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling." However, when the restriction only limits the number of unrelated persons which may occupy a dwelling, the rule is not reasonable; and therefore, the rule is not protected. Recently the United States Supreme Court in City of Edmonds v. Oxford House, Inc. 9 Fla. L. Weekly Fed. S10 (May 15, 1995) declared illegal the City's zoning code limiting the number of unrelated persons occupying a half-way house located in a single family neighborhood. The code regulated the number of unrelated residents, but did not regulate the number of related residents. Thus, associations that have not adopted provisions complying with the FHA's "older persons' housing" exception should carefully consider the restrictions limiting occupancy regulations based upon familial, related, status. THE BUREAU OF CONDOMINIUMS SPEAKS!
The Florida Division of Land Sales, Bureau of Condominiums will present information on financial matters relating to condominium and cooperative associations. The seminars will include question and answer sessions and educational materials. All seminars are open to the public and run from 9:00 a.m. to 12:00 p.m. The dates and locations of the seminars are listed below. If you need directions then please call the number listed, not the firm, for the location. Reservations are not necessary. This is an excellent opportunity for condominium and cooperative association directors to learn more about the financial matters relating to their associations' governance. The firm encourages condominium and cooperative associations to distribute this information to their directors and urges all directors to attend. The dates and locations of local seminars are as follows:
Palm Beach Gardens November 15, 1995
Fort Lauderdale
Miami
|