A Florida appellate court recently decided a case addressing the issue of what duty of care is owed to a person who enters onto an association= s property uninvited and is injured. In Porto v. Carlysle Plaza, Inc., 33 Fla. L. Weekly D 65 (Fla. 3rd DCA, December 26, 2007), a woman walking her dog on a public sidewalk entered onto an association= s property to allow her dog to relieve itself. The woman sued the association for negligence after tripping over a piece of metal protruding from the association= s driveway.

The Florida appellate court explained that the duty of care owed by an association depended on the status of the person on the property. The court found that the woman was an A uninvited licensee@ upon the association= s property because she was there without invitation or the permission of the association or the members. The court stated, A [t]he duty of care owed by a landowner to an uninvited licensee is to refrain from willful misconduct or wanton negligence, to warn of known dangers not open to ordinary observation, and to refrain from intentionally exposing the uninvited licensee to danger.@ Because the association did not behave with willful or wanton negligence or intentionally expose the woman to danger, the court ruled that the association did not breach its duty of care.

This decision may be significant to Florida associations because individuals may enter onto an association= s property for their own purposes and without permission. As long as an association refrains from willful or wanton negligence and does not intentionally expose uninvited licensees to danger while they are on the association= s property, the association may not be held liable for any injuries that result. Guests are presumably on the property by the invitation of an association or the members; thus, the association owes guests a higher level of care.

CONTRACTS: MINOR BREACH DOES NOT STOP TERMINATION OF A LEASE

Can a party be prevented from terminating an agreement based upon a breach of the termination provision of the agreement? If so, what are the circumstances?

A Florida appellate court recently ruled that a landlord had the right to terminate a lease even though the landlord did not comply with the termination provision of the lease. In Covelli Family, L.P. v. ABG5 L.L.C., 33 Fla. L. Weekly D 113 (Fla. 4th DCA, January 2, 2008), a landlord attempted to terminate a tenant= s lease agreement pursuant to the A damage or destruction@ section of the lease which required a specific type of repair estimate showing that over twenty percent of the building was damaged. The tenant objected to termination because the landlord failed to obtain the required estimate prior to sending the notice of termination as required by the lease.

The trial court found that the landlord had the right to terminate the lease because the landlord= s breach of the termination provision was not material. The Florida appellate court agreed with the trial court= s decision. The appellate court stated, A [the landlord= s] failure to obtain an estimate from a contractor prior to sending the notice of termination did not go to the essence of the contract.@ The court explained that by the time of trial, reports for both the tenant and landlord concluded that the damage exceeded twenty percent; thus the tenant was not damaged by the lack of a report.

This decision may be significant to Florida associations as it states that a party may be able to terminate an agreement even if the contract= s termination provision is not followed. The key is whether the failure to follow the provision is material and causes harm. As the appellate court= s decision introduces a new test in Florida law, Florida associations should nevertheless adhere closely to the termination provision when terminating an agreement to minimize the possibility of a lawsuit in the event that the court= s decision is an anomaly and later reversed.

MORTGAGE FORECLOSURE: CAUSING FINANCIAL

PROBLEMS FOR ASSOCIATIONS

Anyone who reads the newspaper knows that we are facing a mortgage foreclosure problem not only here in south Florida, but nationwide. It appears that much frustration faced by associations is traced to lenders= failure to promptly file foreclosure actions and then not promptly moving the foreclosures forward. Unfortunately, there is nothing that the Association can do to force a lender to file a foreclosure action.

As an alternative course of action, an association may consider pursuing a lien foreclosure action when a mortgage foreclosure stalls. Unusual situations, such as if there is a tenant in the unit creating a problem for the association, may warrant this approach. Moving forward with a lien foreclosure action may be a way to remove the tenant from the community.

Although these are troubling times, if associations address these problems in a businesslike manner, much of the frustrations can be alleviated.