The Legislature is in session! An extraordinary number of bills have been introduced to amend the Condominium Act, Homeowners= Act, and Cooperative Act. In addition, the Select Committee on Condominium and Homeowner Governance, a committee appointed by the Speaker of the Florida House of Representatives, has submitted a report.

On a positive note, the Legislature has taken note of recommendations by The Florida Bar to revise Florida= s condominium casualty insurance law. The revisions seek to properly allocate the duties to acquire insurance and the corresponding duty to repair damage. The effort is intended to cure the problems created by the Division of Florida Land Sales, Condominiums and Mobile Homes= decision in Plaza East, as discussed in the firm= s Memorandum to Clients dated December 2005 and March 2006. In addition, Senate Bill 1986 is intended to cure some of the problems regarding Florida homeowners= association collections created by last year= s substantial change in the homeowners= association lien law.

Unfortunately, the overall tenor of the Select Committee= s Report and many of the bills is that those who volunteer as community association directors should not be trusted, that directors= authority should be limited, that owners should have more direct control of their associations, and that there should be stricter penalties imposed upon officers and directors.

Among some of the bills that Florida community associations may find more outlandish than others include the following as of publication time:

Observe the exact text of Bills, their status with up to date amendments, and the identity of sponsors at Online Sunshine (www.leg.state.fl.us).

Particularly as many complain about what the legislature does, this is your opportunity to give positive input to your elected representatives.

Are exculpatory clauses, also called releases or liability waivers, effective tools for avoiding liability? Can an association expect that an exculpatory clause will protect the association in the event of an accident? The answer may depend on the language used in the association= s exculpatory clause.

A Florida appellate court recently decided a case addressing whether an exculpatory clause can be used to disclaim a party= s negligence where the language of the clause can be interpreted in different ways. In Murphy v. Young Men= s Christian Association of Lake Wales, Inc., 33 Fla. L. Weekly D 525 (Fla. 2nd DCA, February 15, 2008), a woman sued the YMCA for injuries she sustained while using the exercise equipment. The trial court granted the YMCA= s motion for summary judgment based on the exculpatory clause that the woman agreed to in her membership application.

The Florida appellate court disagreed with the trial court= s decision. The court explained that although the waiver specifically stated that the YMCA was not responsible for injuries caused by negligence, the waiver also suggested that the YMCA would take A every reasonable precaution@ to prevent accidents. The court found that the waiver was unenforceable because the waiver did not A clearly and unequivocally@ release the YMCA from liability.

This decision may be significant to Florida associations when exculpatory clauses are used to limit associations= liability in their dealings with other parties especially as Florida courts tend to narrowly interpret these causes. To be enforceable, an exculpatory clause must clearly and unequivocally state that the association intends to be released from liability. The exculpatory clause should also be drafted plainly so that an ordinary person may understand what they are contracting away.

The firm is proud to announce that Mr. Gelfand has been requested by the American Law Institute/American Bar Association to again participate in what is now a national legal education program, The Distressed Condominium Project, addressing a countrywide dilemma - the real estate credit crunch. Mr. Gelfand volunteers his time and efforts as a public service; thus, arrangements to attend the next presentation in Washington D.C., or to obtain materials must be through the ABA at: http://www.abanet.org/rpte/pdf/spring_brochure_2008.pdf