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May 1, 1997 MEMORANDUM TO CLIENTS
TRESPASS: DAMAGES FOR INVADING COMMON AREAS Trespassing is common. This should not be surprising. Despite the severe connotation of the term "trespass", the law recognizes that frequently one person will enter another person's land without permission. Usually the entry is inadvertent, fleeting, and without damage. Typically, a trespass occurs when a person steps off a sidewalk onto a private lot. Because of the frequency of inadvertent trespasses, the "common law" has built many barriers against trespass litigation. Despite frequent claims and media reports that there is too much litigation, for literally centuries the courts have sought ways to reduce trespass claims. One of the latest efforts by a Florida appellate court occurred in the recent decision of Winselmann v. Reynolds, 22 Fla. L. Weekly D578 (Fla. 3d DCA, March 5, 1997). The Winselmann decision will be of great interest to associations because the decision concerns both the method for enforcing common area restrictions and attorney's fees claims. In an earlier, initial lawsuit reported as Dolphins Plus, Inc. v. Hobdy, 650 So. 2d 213 (Fla. 3d DCA 1995), the Winselmanns and their neighbors successfully obtained an injunction preventing interference with a boat basin. The Reynolds leased property to Dolphins Plus which erected a fence around the subdivision's boat basin. The fence obstructed navigation; thus, the fence violated the subdivision's declaration of restrictions and the underlying plat restrictions. As a result, the courts ordered the fence removed. At issue in the second claim brought by the Winselmanns is whether someone holding an easement right in a common area can obtain damages for trespass. Ordinarily, a person suing for a trespass to land must hold an ownership or possessory interest in the land. In this situation the Winselmanns held only an easement, a non-possessory right. The Winselmanns did not own the boat basin, nor did they own property adjacent to the basin. Nevertheless, the Winselmanns alleged that their easement rights were severely diminished by the fence construction; thus, the Winselmanns sought damages. The Third District Court of Appeals drew a fine line, apparently seeking to continue the disdain for trespass claims, but still attempting to find a fair and equitable remedy. The court reaffirmed that the Winselmanns did not have a claim for a trespass. Technically, because the Winselmanns did not have an ownership or possessory interest in the property the Reynolds conduct did not cause the Winselmanns a direct loss. However, utilizing another technical rule, the court held that the Winselmanns could seek redress for indirect losses in an action entitled "on the case". The Winselmann decision also involved another serious issue, the recovery of attorney's fees. The Winselmanns sought to recover attorney's fees expended in the initial, Dolphins Plus, litigation. The Appellate Court held that the "wrongful act doctrine" is an exception to the usual rule that attorney's fees are not collectable in the absence of a clear statutory or contractual basis. The wrongful act doctrine allows the prevailing party to seek an award of attorney's fees if an opposing party caused the prevailing party to incur attorney's fees in earlier litigation. The earlier litigation should involve a different party. The earlier litigation must be caused by the present defendant's wrongful act. The Court applied the wrongful act doctrine noting that the Reynolds' lease was a potential wrongful act causing the earlier litigation with Dolphins Plus, the Reynolds' tenant. The Winselmann litigation confirms that a trespass claim may be a difficult process. By stressing that a trespass claimant should have an ownership interest in the property, most trespass claims against common areas should be brought by the community homeowners' association. Rarely should a member bring a trespass claim; however, in a particularly serious situation, a member's damages may justify a claim. CONDEMNATION: YOU WANT IT, YOU BUY IT
If the state takes your property, then the state must pay you for the property. This simple doctrine traces its lineage back to pre-revolutionary times. One of our founding fathers' complaints in the Declaration of Independence was that the King's soldiers were taking private property without just compensation. As a result, due process guarantees of the Fifth and Fourteenth Amendments to the United States Constitution require the state to justly compensate owners when the state takes their property. This protection against uncompensated takings is also found in the Florida Constitution. Since the American Revolution the question of compensation, referred to as the doctrine of eminent domain, has become more complex. The complexity is due in large part to the increasingly diverse ways in which property is held. In earlier times all the potential rights in property were generally held by one or two persons. A different type of ownership interest that triggered the doctrine of eminent domain was examined in Palm Beach County v. Cove Club Investors, Ltd., 22 Fla. L. Weekly D598 (Fla. 4th DCA, March 5, 1997). As part of a road widening effort, Palm Beach county sought to condemn a mobile home lot. The lot was subject to a recorded declaration of conditions, covenants, restrictions and reservations. The declaration required each lot owner to pay Cove Club Investors a monthly fee for the use of recreational facilities which included a golf course and country club. The issue in Cove Club was whether the county's taking of the lot legally required payment not only to the lot owner, but also to Cove Club Investors for the Investors loss of the monthly recreation fee. The Fourth District Court of Appeals held that the declaration created more than just a contract right. The recorded declaration created a real property right, the monthly income from the recreation fee. As a result, the Florida Constitution required full compensation for property taken. The appellate courts carefully distinguished between Cove Club's real property rights and contract rights. The Supreme Court of Florida in Board of Public Instruction of Dade County v. Town of Bay Harbor Islands, 81 So.2d 637 (Fla. 1955) held that mere building restrictions are not a basis for an eminent domain claim. Thus, while the state may take the property without compensation, and disregard covenants mandating building restrictions, the taking of property that generates money may trigger the need for the state to compensate the person or entity entitled to the money, such as a condominium or homeowners' association.
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