Names of Fellow Unit Owners Is Public Record

Q: I am requesting from the association office the names of each unit owner in my condominium association. Is the office legally required to furnish that list to me? (J.G., via e-mail)

A: If your request for the names of each unit owner was made in writing, the association is legally required to make them available to you for inspection or copying within 10 working days after the association received your written request. If the request was not made in writing, there is not a similar legal requirement.

The Florida Condominium Act provides that a current roster of all unit owners is an official record of the association that must be maintained by the association. Under the Act, the association is also legally required to make the current unit owner roster available to any unit owner for inspection or copying (at a reasonable expense) at all reasonable times on the condominium property (or otherwise within 45 miles of the condominium property or in the county where the condominium property is located) within 10 working days after receipt of a written request. Inspection and copying of the current unit owner roster would be subject to any reasonable rules regarding the manner and frequency of such inspections and copying duly adopted by the Board. The association may, but is not obligated to, offer the option of making the current unit owner roster available to you online or by e-mail.

The failure of the association to make the current unit owner roster available to you for inspection or copying within 10 working days creates a rebuttable presumption that the association willfully failed to comply with this legal requirement. A unit owner who is denied access to the current unit owner roster, or any other official record, is entitled to the actual damages or minimum damages of $50 per calendar day up to 10 days beginning on the 11th working day after the date the written request was received by the association.

For anyone who is concerned about personal information of theirs being shared with other unit owners, the Act protects certain telephone numbers, e-mail addresses, and other “personal identifying information” of unit owners, including social security numbers, driver’s license numbers, and credit card numbers. Although the law does not clearly define what is and is not “personal identifying information,” unit owner names, their unit numbers, and their mailing addresses are not personal identifying information exempt from official records inspection and copying requirements and are readily available online from the county property appraiser.

Q: My elderly mother lives in a neighborhood with a homeowners’ association. She is not really computer savvy. All of the newsletters and information alerts that the HOA sends out are by e-mail, so she is not in the loop as to what is going on in her neighborhood. This seems very unfair to me. Is this legal? (L.G., via e-mail)

A: It is not illegal.

Condominium, cooperative and homeowners’ associations in Florida must send official notices (for example the annual meeting notice) by U.S. Mail or hand delivery. However, if a property owner signs a consent form, the association may send them official notices by electronic transmission, typically referred to as e-mail.

In recognition of the prevalence and convenience of electronic communication, the law was also amended a few years ago stating that proxies for association meetings could be sent in by e-mail (scanned attachment) regardless of any provision in the association’s bylaws to the contrary.

For better or worse, the days of the mailed out “Association Newsletter” are reaching their end. There is no legal requirement for these communications and most associations use the means that is both easiest for the association, and most convenient for the majority of its members. In most cases, this involves either “e-mail blasts” or website postings, with no paper involved.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams

Enforcement Tool Belt – Fining/Suspension

In the proverbial “tool belt” of enforcement options available to an association for violations of the rules and regulations, the imposition of fines and suspensions is one that we frequently get questions about due to the procedures that must be followed.  If the process is not followed properly, it may result in invalidation of the fine or suspension, and can also result in potential legal exposure to the association.

Whether you live in a condominium, cooperative, or homeowners’ association, owners and their guests, tenants and invitees are bound by the association’s governing documents, which may include the declaration, articles of incorporation, bylaws and rules and regulations.  When owners or their guests, tenants or invitees violate the governing documents, associations have certain remedies available to it under Florida law.  In many circumstances, a friendly letter from the community association manager is sufficient to resolve the matter.  In other circumstances, a more formal “notice of violation” will bring an end to continuing violations.  However, in some instances further action is required to enforce a violation.

Florida law for condominiums, cooperatives, and homeowners associations authorizes an association to assess fines and to levy suspensions to enforce the governing documents of a community.  All three types of associations (condominiums, cooperatives, and homeowners associations) have the ability to impose reasonable fines, or to suspend for a reasonable period of time, the right to use common elements, facilities or association property for failure to comply with provisions of the declaration, the bylaws, or rules and regulations of the association.

Sections 718.303 (for condominiums), 719.303 (for cooperatives) and 720.305 (for homeowners’ associations) provide fining and suspension as a remedies available to the association, and also provides the procedures that the association must follow to enforce such remedies.

Generally, the board must appoint an independent committee (often called the fining committee or compliance committee). The committee cannot be comprised of officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If a violation is to be considered for a fine or suspension, the board meets at a duly-noticed meeting, reviews the matter, and “levies” a fine or suspension, if deemed appropriate. After the board levies the fine or issues a suspension, the person to be fined is then entitled to a hearing before the committee. Notice must be received at least 14 days in advance of the hearing. If the association does not hear from the party to be fined or suspended, or the individual does not actually appear at the hearing, the hearing should still be held. At the hearing, the committee must afford basic due process and allow the accused to be heard, state their case, and challenge evidence against them. The committee must then either “confirm” or “reject” the fine or suspension. If the committee rejects the fine or suspension, the matter is over. If the committee confirms the fine or suspension, the board then “imposes” it. After the board has imposed the fine or suspension, a letter should be sent advising of the amount of the fine and the date due.  With regards to a suspension, a letter should be sent advising the length of the suspension.

Originally posted on floridacondohoalawblog.com. Written by Jennifer Horan

The Subrogation Situation

With increasing frequency, insurance companies that provide unit owner insurance are suing community associations to recover payments made to the unit owner that are related to water leaks in the unit. The problem with these lawsuits is two-fold. First, the insurance companies are waiting years to bring them, although still within the statute of limitations for the lawsuit, but nonetheless to the detriment of the community association’s defense of the case as records and memories fade overtime. Secondly, the cases are many times brought in small claims court as a result of the insurance company seeking at most $5,000.00 in “reimbursement” from the community association. The issue with defending a small claims court case is that the cost of defending the lawsuit can be more than the amount the insurance company is seeking which puts pressure on the community association to simply settle. The basis of the insurance company’s lawsuit against the community association is negligence; the insurance company claims that the association had a duty to take some action, failed to take the action and such a failure led to loss that resulted in the insurance payment to the unit owner.

What can be done to limit a community association’s exposure to such lawsuits? First, the community association should consult with its attorney to determine if an amendment to the declaration for the association should be adopted related to subrogation. Next, community associations need to promptly respond to complaints related to leaks and properly document repair work in a detailed manner so that the location and extent of work is easily understood. The documentation related to repair work should be kept for seven years and be readily accessible. Community associations should perform routine maintenance and inspections of property that the association is required to maintain in order to identify in advance of a water leak areas of needed maintenance. Lastly, anytime there is a water leak or other casualty to unit, the association must thoroughly document, in writing, what happened to cause the leak, what was done in response to the leak and all communications between the association, the unit owner and the unit owner’s insurance company and adjuster. Such documentation should be shared with the community association’s attorney and kept in the association’s official records.

Originally posted on floridacondohoalawblog.com. Written by Marielle Westerman

Association Cannot Restrict Board to Florida Residents

Q: The board of my condominium association seems to always be stacked with seasonal residents who want things nice for the few months they are there, and to cut costs for the rest of the year. A group of year-round residents would like to start a petition to change our bylaws to require that board members be Florida residents, or at least reside at the condo so many months a year. How would one go about this? (J.L., via e-mail)

A: Initiating a bylaw amendment by membership initiative typically requires a petition to the board requesting the call of a special meeting and presenting proposed amendment language for the bylaws. The number of signatures required on the petition will depend on the provisions of your specific condominium documents. Twenty-five percent seems to be a common number. If the bylaws are silent on petitioning for a special meeting, the default requirement of the state corporate statutes is five percent all voters.

However, it is my opinion that such a petition would be fruitless and even if you got enough signatures, the board would not be obligated to present the amendment, because it is contrary to law.

Section 718.112(2)(d)4 of the Florida Condominium Act states that every unit owner has the right to serve on the board. There are certain limitations in the statute itself. For example, two people from the same unit cannot serve on the board if there is a contested election. Certain convicted felons are ineligible for board service. Certain financial defaults to the association disqualify a person from running for or serving on the board. There are a couple of other exceptions including the requirement for “board certification,” being charged with certain crimes, and the ability of the state regulatory agency to remove directors for misconduct. There is also the recent 8-year term limit statute which has been discussed in a number of my recent columns.

Other than those conditions set forth in the statute, limitations on the right to serve on the board are not legally valid. The Division of Florida Condominiums, Timeshares, and Mobile Homes, the state agency which has specified regulatory oversight of condominiums, has ruled that “residency requirements” for board service contained in association bylaws are invalid.

Q: I am on the board of my homeowners’ association. We are confronting a very divisive issue about potentially expensive renovations to our common property. The community seems evenly split and things have gotten unpleasant. Our board recently had to take a vote on whether to continue with this matter. I suggested that due to the divisiveness in the community, and so that each director could vote his or her conscience without fear of alienating people, that we vote by secret ballot. I was told this is illegal. Is that true? (S.G., via e-mail)

A: Yes. Section 720.303(2)(c)3 of the Florida Homeowners’ Association Act states that directors may not vote by proxy or by secret ballot at board meetings, except that secret ballots may be used in the election of officers.

Q: The air-conditioning and heating for my condominium unit comes from a compressor which sits outside on a pad. It recently gave out. The manager told me I had to pay for a new one. I thought that owners only had to pay for what is inside the four walls of their apartment. What is the ruling on this? (F.C., via e-mail)

A: Air-conditioning compressors are usually part of the common elements of the condominium. Under current state law, they are insured by the association. Therefore, if the compressor was damaged due to an “insurable event” (such as a lightning strike), the association would generally be responsible to repair or replace it.

If this is simply a wear and tear issue, your declaration of condominium will dictate the answer. In most condominiums, the compressors are described as “limited common elements” and are the maintenance, repair, and replacement responsibility of the unit owner. However, this is not universal, and the language of your individual documents will control.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com

Competitive Bidding Explained

Q: My condominium association recently solicited bids for major repairs to our condominium buildings. The cost of the project is several hundred thousand dollars. At the recent board meeting where the contractor was selected, the board discussed all of the bids and voted to proceed with a particular contractor. However, this contractor was not the lowest bid received. When the association must put out contracts for bid, isn’t it obligated to go with the lowest price? (C. J., via e-mail)

A: No. Section 718.3026(1) of the Florida Condominium Act applies to contracts for the purchase of materials or equipment and the provision of services. Any such contract that requires payment of an amount that exceeds five percent of the total annual budget of the association, including reserves, requires competitive bids.

People often ask if three bids are required by the statute. I believe the reference to “competitive” bids means that two bids are sufficient, though there is certainly nothing wrong with getting more. It is important that bids be for the same scope of work, however.

As to your specific question, the statute states that “nothing contained herein shall be construed to require the association to accept the lowest bid.”

It is also important to remember that certain contracts are exempt from the competitive bidding requirements of the statute. Exemptions include contracts for hiring association employees, as well as contracts with accountants, architects, association managers, engineers, landscape architects, and attorneys.

Section 720.3055(1) of the Florida Homeowners’ Association Act contains similar requirements for homeowners’ associations, although the obligation to obtain bids under this statute only arises when the proposed contract exceeds ten percent of the association’s annual budget, including reserves.

As with many issues in community association operations that are regulated by statute, it is also important to remember that the governing documents for an association can impose stricter requirements than regulations contained in the law.

Q: Our condominium has some different factions. I agree with one group and others are part of a second group. I recently ran for the board and lost by only a few votes. Right after the annual meeting, one of the people from the other group, who had not been up for election because she still had one year left on the board, resigned. The rest of the board then appointed one of their supporters to fill that seat. We think I should have been appointed to that seat and that this whole thing was rigged and underhanded. What do you think? (L.S., via e-mail)

A: Condo politics can be as rough as any. Unless there is a very unusual provision in your bylaws, candidates who run for the board but are not elected have no greater claims to vacancies that open up on the board than anyone else.

Section 718.112(2)(d)9 of the Florida Condominium Act states that vacancies occurring on a board are filled by majority vote of the remaining directors, even if they constitute less than a quorum. Vacancies are filled for the unexpired term of the seat being filled, unless otherwise provided in the bylaws.

Q: We just had the annual meeting for our homeowners’ association and I was elected to the board. Our manager said we have to now do an “annual MRTA review” but he was not exactly sure what that was, nor are we. Can you shed any light on this subject? (C.F., via e-mail)

A: MRTA is the common abbreviation used for Florida’s Marketable Record Title Act, which is Chapter 712 of the Florida Statutes. It is a rather complicated real estate statute, but of interest to you, it can extinguish your covenants after 30 years if certain steps are not taken to protect them by certain recordings. The Florida Homeowners’ Association Act was amended in 2018 to require the board of every HOA, at the first meeting of the board each year (excluding the organizational meeting) to review the association’s status under MRTA.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com

Complaint Against Neighbor Not Confidential

Q: I recently wrote a letter to the board of directors of my condominium association complaining about constant noise from my neighbor. I then learned that my neighbor was given a copy of the letter. Isn’t this supposed to be confidential? I do not really know him that well and do not want to be dragged into the middle of this. I feel like the association violated my privacy rights by showing my neighbor the letter.  (W.L., via e-mail)

A: The Florida Condominium Act generally provides that all written records of the association are open to the inspection and copying by the unit owners, unless specifically exempted in the statute. Therefore, essentially any written document related to the association is an “official record” of the association. Your letter to the board concerning your neighbor is an official record of the association.

There are exceptions to a unit owner’s right to inspect and copy certain records. For example, attorney-client privileged information, owner health records maintained by the association, and certain personal identifying information of unit owners (such as driver’s license and credit card numbers) cannot be made available for inspection. Your complaint letter does not fall into any of the recognized exceptions. In other words, owners have no expectation of privacy when they make a written complaint against another condominium resident.

Although the board or manager may or may not have overstepped their bounds in giving your neighbor the letter if he had not asked for it, your neighbor would be legally entitled to a copy of the letter if he requested it in writing, so there was no legal wrongdoing by the association. In my opinion, behavioral complaints which a condominium resident wishes to make with the expectation that the association do something about it should be in writing. In addition, although it is undoubtedly uncomfortable in some cases, when an owner wants to involve the association, I believe they need to be willing to “put their name behind their complaint.”

Q: The board of directors of our condominium association is supposed to follow Robert’s Rules of Order according to our bylaws. When they open the floor up to owner comments, there are things some the owners would like to have addressed by the board, so we make a motion to take up the issue. The board says that we are out of bounds and will not do anything. Who is right? (J.P., via e-mail)

A: The board. Regardless of whether Robert’s Rules applies to your board meetings or not (and it does not, unless incorporated into the bylaws), owners do not have the right to make motions, points of order, or otherwise participate in meetings of the board. Only members of the assembled body, here the board, have those rights.

Owners do have the right to comment on designated agenda items. Therefore, if the board is considering whether it is time to paint the buildings, you have the right to express your opinion on the issue, subject to the board’s right to adopt reasonable rules governing owner statements at board meetings. The right to speak is limited to designated agenda items. Therefore, if an item is not designated on the agenda, there is no right to speak to the board about it during board meetings, although some associations do set aside time for general owner comments.

In fact, the board itself cannot take up items at a board meeting unless they are on the posted agenda, except in certain emergency circumstances. If there is an issue that you feel the board should consider, there is a provision in the statute that allows 20 percent of the owners to petition the board to consider a particular item at a regular or special meeting.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com

Condos, HOAs, and Written Inquiries

Many times I see situations where an owner sends a community a certified letter seeking the answer to questions about various issues.  The nature and manner of the responses is dictated by the type of community. The Florida Condominium Act states that when a unit owner of a residential condominium files a written inquiry by certified mail with the board of administration, the board from the condominium association shall respond in writing to the unit owner within 30 days after receipt of the inquiry. The condominium association board’s response shall either give a substantive response to the inquirer, notify the inquirer that a legal opinion has been requested, or notify the inquirer that advice has been requested from the division. If the condominium association board requests advice from the division, the board shall, within ten days after its receipt of the advice, provide in writing a substantive response to the inquirer. If a legal opinion is requested, the condominium association board shall, within 60 days after the receipt of the inquiry, provide in writing a substantive response to the inquiry. There are penalties if these deadlines are not adhered to. It should also be noted that the condominium association may, through its board of administration, adopt reasonable rules and regulations regarding the frequency and manner of responding to unit owner inquiries.

In contrast, the Florida Homeowners’ Association Act contains no such similar provision.  As such, the HOA is not required under the statutes to respond to the certified inquiry. That being said, the HOA’s governing documents still need to be checked to confirm there is no requirement therein to respond to an owner’s certified inquiry. Even if not legally required, the HOA board should consider whether it is advisable to respond to the owner’s complaints in some manner as a proactive step to possibly help resolve a dispute rather than letting it escalate further.  This decision should come after seeking advice from the association’s counsel.

Originally posted on floridacondohoalawblog.com and written by David G Muller

Procedure To Convert To Pooled Reserves

Q: Can a condominium association board vote to convert from straight-line reserves to pooled reserves without a membership vote?  R.F. via e-mail

A: “Cash flow” funding of condominium reserves, often referred to as the “pooling” method of reserve funding, is a concept that was introduced many years ago through an amendment to the state’s administrative rules regulating condominium finances.  Under the traditional, “straight-line” method, required reserve contributions are calculated by using a formula that divides the cost of replacing a particular item by the number of useful years that item has left, minus the reserve funds on hand for that item, with the result being the amount to fully fund that item for the next fiscal year.  Each reserve component must be separately funded and must appear as a separate line item in the reserve schedule which is part of the budget.  Absent a majority vote of the unit owners at a duly called meeting, monies for each separate reserve item can only be used for that particular reserve item.

Under the pooling or cash-flow method, each reserve item is still separately funded but the money is put into one account. The reserve schedule computation is a bit more complicated and typically needs to be prepared by an accountant or reserve consultant.  The basic theory is that the association attempts to predict the year a particular asset will require deferred maintenance or replacement, and a mathematical formula is then applied to calculate required contributions for each year.  In theory, the money should be available when needed, with a lower contribution than required using the straight-line method.

A condominium association needs approval of the unit owners (i.e. a majority of the owners who vote at a meeting where a quorum is attained) to put existing straight-line reserves into the “pool.”  Once the vote to switch to pooled reserves is successful, no further votes would be required in future years and the association could continue to operate under the pooling method.

Q: My homeowners association is in a dispute with the landscaping company that was recently terminated for doing a bad job and for damaging common property.  The board advises that they are not going to sue the landscaping company because it will cost too much money and there is no way to recover the attorney fees incurred during the litigation.  Is the board right?  Is there no way to recover attorney fees in this type of dispute?  B.L. via e-mail

A: Since your association entered into a written service contract with this landscaping company, the terms of the contract will govern this dispute.  If the contract does not contain a provision allowing prevailing party attorney fees and costs in the event of a legal dispute, the association will likely have no ability to pursue these types of damages.  I use the term “likely” here because Florida Statutes do provide for the recovery of prevailing party attorney fees and costs in certain situations.  That being said, from the information you have provided, I doubt the association will have any statutory claim for prevailing party attorney fees and costs.

It is recommended that any contract the association enters into be first reviewed by the association attorney.  Many proposed contracts that I review on behalf of my association clients seem appealing because they are brief (one or two pages) but lack sufficient details and almost always favor the contractor.  A properly drafted contract will address important terms, including not only how you can terminate but issues like required insurance, indemnity for injuries, and the right to recover attorney fees if you have to go to court.

Attorney David G. Muller is a shareholder with the law firm of Becker & Poliakoff, P.A., Naples (www.beckerlawyers.com). The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this column does not create an attorney-client relationship between the reader and Becker & Poliakoff, P.A. or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

Originally posted by floridacondohoalawblog.com Written by David G. Muller is a Board Certified Attorney in Condominium and Planned Development Law with Becker & Poliakoff, P.A., which represents community associations throughout Florida, with offices in Naples, Fort Myers and 10 other Florida cities.  The Firm focuses a substantial amount of its practice on condominium and homeowners association law. 

A Primer on Budgeting and Reserves

Few aspects of condominium and cooperative association operations are as heavily regulated as the budgeting process and yet too many boards take an informal approach to these crucial director functions.  From Section 718.504, which lists the required operating expense categories, to Section 718.112, which delineates the process and the requirements for reserve disclosures, budgeting, funding and use of reserve funds, to Section 61B-22 of the Administrative Code, which addresses even more detailed aspects of the process we can see how broadly the Florida Legislature has addressed budgeting and reserves.  Errors in the manner in which budgets and reserves are handled can subject associations to monetary penalties imposed by the State.

Budgeting is a process of estimating upcoming expenses.  On the operating side, most communities rely on prior years’ budgets and financial statements to develop the upcoming year’s budget for operating expenses.  The operating budget should be designed to meet the reasonably anticipated operating expenses.  All board members should do everything they can to deliver value to the members for their assessment dollars, but some boards make the unwise decision to keep assessments down artificially for political purposes at the expense of performing necessary maintenance.  When this occurs, the ultimate repair costs are usually higher because of the damage and deterioration that could have been avoided had repairs been done in a responsible and timely manner.  To put it simply, budgeting to properly maintain the community is, of course, a fiscal issue, and a planning issue, but it should not be a political issue. 

On the reserve side, many communities that went years or even decades without funding any reserves are finally starting to fund at some level and are considering the cash flow funding model over the component funding model, usually because the cash flow model funds a pooled reserve rather than a reserve fund in which funds are restricted for specific reserve assets rather than being available to use for any reserve asset.  For those communities without fully funded reserves, an accurate reserve study is the best defense against complaints over the inevitable special assessments needed to supplement underfunded reserves or fund projects for which the membership has voted to have no reserves. Boards that pull reserve estimates out of thin air are setting themselves up for future complaints and possible recall when the figures they chose prove wildly inaccurate.

There are too many communities that do not attach an accurate reserve schedule to the proposed budget, as required by Statute.  Usually this is because these communities have not obtained a reserve study from a reliable professional or, in an even worse scenario, have a reserve study and have chosen not to disclose its contents.  All board members and managers are encouraged to remember that the purpose of a reserve study is to allow the board to make accurate disclosures of the upcoming reserve expenses.  The purpose of the disclosure is to enable the owners  to know what expenses are coming up, but does not deprive the members of the right to vote each year to waive or reduce the funding of the reserve portion of the budget.  The assets for which reserve disclosures are required by law are the roof, paving and painting, regardless of cost, and any other component for which deferred maintenance or replacement cost will exceed $10,000.00.  Assets costing less than this dollar threshold can be aggregated for the purpose of reserve budgeting and the Administrative Code allows the board to create other reserves (other than those required by Statute).  For each reserve asset, the reserve schedule must disclose its estimated total useful life, estimated remaining useful life, estimated deferred maintenance or replacement cost, and for reserves funded on the component model, the estimated balance in the reserves for that asset at the end of the current fiscal year. 

This analysis applies to both condominiums and cooperatives (the citations above are for condominiums, but there are identical requirements for cooperatives in other portions of the Statute and Administrative Code).  Homeowners association are not subject to the same requirements unless the developer (before turnover) or a majority of the members (after turnover) vote to opt into the statutory reserve structure.

Preparing your operating budget and planning for reserves each year requires thoughtful deliberation as to the needs of the community both short and long-term.

Those Pesky Little White Balls

Living in a golf course community is the ultimate dream for many. However, a golf course address can equate to some rather nightmarish liability issues for many community associations. Those issues often stem from misdirected golf swings or “errant” shots.

There is no statutory law that governs golf ball liability. However, the Supreme Court of Florida has established that the driver of a golf ball is charged with the duty to exercise “ordinary care” for the safety of persons reasonably within the range of danger. Similarly, several other Florida courts have concluded that an operator of a golf course is not required to maintain the course in such conditions that no accident could possibly happen.

Nonetheless, according to such court rulings, the owner or operator of a golf course does have a legal duty to maintain the course in a reasonably safe condition, commensurate with the facts and circumstances that an ordinarily prudent person would generally exercise. Moreover, if a person knows of the existence of the course before moving into a golf course community, he or she is presumed to have “assumed the risk.” As such, generally speaking, that person cannot hold anyone liable for any damage or physical injury which may result from an errant golf ball.

The question of whether a community association can be held liable for errant shot damage or physical injury is dependent on several factors. If approached from a safety perspective, it is well-settled that a community association is charged with a duty of protection from foreseeable common element danger. Such duty arises because an association is usually held to a landlord’s standard of care regarding the common elements in its control. Additionally, the duty to protect against flying golf balls can also be compared to an association’s duty to protect its residents and invitees from foreseeable criminal acts.

Based on all of this, community associations are not automatically insulated from liability regarding errant golf balls. The potential for significant liability does exist. As such, an association’s governing documents and marketing materials should clearly provide that the association cannot be held liable for any damage or injury caused by golf balls hit from a community, or adjacent course. The disclaimer should also be included on the face of an association’s website and in periodic newsletters as well.

Finally, if an association is aware of errant golf balls flying into the community, it should also display signs to warn of the issue, given that the “open and obvious nature” of such a hazard may not always suffice to discharge an association of its duty to warn its membership and invitees of foreseeable potential harm. But, warnings do not necessarily discharge an association from maintaining its property in a reasonably safe condition. Thus, even if an association places warning signs regarding errant golf balls, it still has a duty to try to alleviate any known problems, in an effort to keep its premises safe.

Originally posted on floridacondohoalawblog.com and written by Astrid Guardado, ESQ