Memorandum To Clients

NEGLIGENCE: OVERGROWN LANDSCAPING MAY LEAD TO LIABILITY

Has the association been properly maintaining its landscaping? Does the association= s landscaping extend beyond the association= s property? If so, a Florida association may be held liable for injuries that result from accidents caused by the landscaping that extends beyond the association= s property, or in the case of a condominium, outside the condominium= s boundaries.

The Supreme Court of Florida recently addressed a residential property owner= s duty of care to passing motorists. The Court ruled that a residential property owner whose landscaping does not extend beyond the property boundaries is not liable for injuries sustained by a passing motorist. In Williams v. Davis, 32 Fla. L. Weekly S745 (Fla., November 21, 2007), a motorist was killed in a collision at an intersection when her vehicle was struck by a dump truck.

The dead motorist= s estate sued the residential property owner abutting the intersection, alleging that the landscaping on the owner= s property obstructed the motorist= s view of other traffic as the motorist approached the intersection. The trial court found that the property owner owed no duty of care to the motorist.

The Supreme Court of Florida pointed out that the law recognizes that a property owner owes a duty of care even to those who do not come on the owner= s property. Previously, the Supreme Court of Florida has held that where a person= s conduct creates a A foreseeable zone of risk@ posing a general threat of harm to others, a legal duty exists to ensure that the person acts reasonably. The Court concluded that while the zone of risk analysis would be applied to the motorist= s situation, undertaking the analysis resulted in a conclusion that the owners of residential property do not owe a duty of care to motorists on adjacent roadways regarding maintenance of landscaping located entirely within the owner= s property.

Although the Court found in Williams that the property owner was not liable, this decision is important to Florida associations because the Court recognized that all Florida property owners have a duty not to allow the landscaping on their property to extend into the public right-of-way so as to interfere with a motorist= s ability to safely travel on the adjacent roadway.

OFFICIAL RECORDS: IS IT ALL THERE?

In Nero v. Continental Country Club R.O., Inc., 32 Fla. L. Weekly D2951b (Fla. 5^th DCA, December 14, 2007), two homeowners sued their homeowners= association claiming that the owners were wrongfully removed as Association officers. The homeowners also alleged that the association failed to maintain minutes of the association= s meetings and failed to provide access to the association= s official records in a timely manner.

A Florida appellate court reversed the trial court= s dismissal of the complaint. Based on the Act, the appellate court pointed out that Florida homeowners= associations are required to maintain minutes of meetings for seven years. The court also pointed out that the Act obligates associations to provide members the opportunity to inspect and copy official records of the association. An association may also be liable for damages if a member is denied access to the official records for inspection and copying.

This decision is important to Florida community associations because it serves as a reminder that community associations must be operated in compliance with Florida law. Keep in mind that many of the functions and tasks undertaken by an association have specific requirements mandated by the Florida Condominium Act or Homeowners= Association Act. The following are a few of the legal requirements:

Frequently Asked Questions and Answers Sheets and Disclosure Summaries.

A Frequently Asked Questions and Answers@ Sheets must be updated annually by condominium and cooperative associations. Condominium and cooperative associations are required to provide requesting owners and potential purchasers with the Sheets. Failure to have an up-to-date Frequently Asked Questions and Answers Sheet may subject the condominium or cooperative association to liability. Similarly, Florida homeowners= associations are required to maintain a copy of the disclosure summary in the association= s official records and are required to provide requesting owners with a copy of the disclosure summary. An association may be subject to liability for failure to provide the summary.

Annual Report and Fee.

Both the Florida Business Corporation Act and the Florida-Not-For-Profit Corporation Act require that all Florida corporations, including condominiums, cooperatives and homeowners= associations, file an annual report and pay an annual fee. The Annual Report reminder card from the Florida Department of State, Division of Corporations should arrive by the middle of January. Read the form carefully and follow the instructions. If Gelfand & Arpe, P.A., or Michael J. Gelfand is listed as the Association= s registered agent, then the report should reflect the firm= s current address. Most importantly, the form and fees should be filed and paid on time!

Records.

The Florida Condominium Act, Florida Cooperative Act and Homeowners= Association Act provide only the minimum amount of time records must be kept. It is suggested that some items, such as minutes, be kept indefinitely to provide information on the Association= s history. Other items, such as documents relating to pending or anticipated claims must be kept until the claims are resolved.

FIRM NEWS

We are pleased to announce that Joanne Gelfand, A Of Counsel@ to the firm before relocating to Broward County, has been honored by being named the A Most Effective Bankruptcy Lawyer@ for 2007 by the Daily Business Review.