Why is a Plat so Important?

As an owner of residential property in Florida, you are aware that your community is probably subject to a unique set of “governing documents.” Typically these will include a Declaration of Covenants and Restrictions, Association Articles of Incorporation and Bylaws, and various Rules and Regulations.

Less well known is the statutory process of “platting,” which is required whenever a developer wishes to subdivide a large piece of property into smaller parcels and tracts. These smaller areas become the residential lots, streets and parks of a new residential sub-division.

Creation of statutory subdivision plats is governing by Florida Statute 177 Part 1. The statute contains specific requirements for both drafting and filing a plat. Basically a plat is a map of the subdivision of lands, which is supposed to be an exact representation of both the subdivision and other information required by the statute and any local ordinances. The next time you have an issue with boundaries in your community, the extent or purpose of an easement, or whether a portion of property is within your property, check your plat in addition to other governing documents, it has a wealth of information.

Every plat of a subdivision must be accompanied by a survey of all the boundaries of the platted lands. The survey must be performed under the supervision of a professional surveyor. Each plat must be accompanied by a title opinion of a Florida attorney, abstractor or title company which shows that all the owners of the property are executing the plat, and that all mortgages on the property have been satisfied.

The statute lists 29 specific requirements for each plat, including the size of the plat and the color ink that must be used. In working with your community plat (which is recorded in the Public Records of the County in which your community is located) the following requirements can be particularly useful:

  • A prominent “north arrow” must be drawn on every page to allow you to orient the map.
  • Sufficient data must be shown on the plat to describe the boundaries of every residential lot, block, street, easement, park and all other areas shown on the subdivision plat.
  • Properties which adjoin the subdivision must be identified by subdivision title, plat book and page. If adjoining land is unplatted, that must also be designated.
  • Both the location and width of all easements must be shown either on the plat or in the notes or legend on the plat. The specific intended use of each easement must also be clearly stated.
  • If there is an interior parcel within the community that is not part of the plat, it must be clearly labeled; “Not A Part Of This Plat”. Without such a label, all property within the boundaries of the platted subdivision are included.

If your community decides to have another survey of any portion of the property, it is important to remember that the original surveyor who prepares a subdivision plat is presumed to have been correct. For this reason, the new survey will only locate the original monuments, points and lines of the original survey. If for any reason there is a discrepancy between what the subdivision plat shows and what the original survey indicates, the monuments placed on the ground as part of the original survey have precedence.

Originally posted on floridacondohoalawblog.com and written by Harry W. Carls ESQ

Association Requirements to Hurricane Coverage

Q:        To cut costs, my condominium association wants to stop buying hurricane insurance. Are they allowed to do this under the law? (S.W. via e-mail)

  1. No. Section 718.111(11)(a) of the Florida Condominium Act requires condominium associations to use their “best efforts” to obtain “adequate” property insurance. Pursuant to the statute, “adequate” insurance is based on the replacement cost of the property to be insured, as determined by an independent insurance appraisal at least once every 36 months.

The property which must be insured by the association includes all portions of the condominium property as originally installed, in accordance with the original plans and specifications, and replacements of like kind and quality. However, certain items, such as wall, ceiling, and floor coverings, cabinets, countertops and appliance within the unit, are excepted from the association’s insurance responsibility, and are the responsibility of the unit owner. Therefore, your condominium association is required to purchase and maintain property insurance on the condominium property, including windstorm insurance.

Q:        Can my condominium association include trees destroyed by Hurricane Irma in a special assessment for roof and building damage repair? (M.L. via e-mail)

A:        Yes. The association has the duty to repair the condominium property after an insurable event. This includes removal of debris and typically includes replacement of landscaping that was damaged or destroyed. Assuming that this landscaping is party of the common elements of your condominium, it is entirely proper for the association to include these amounts in a special assessment.


Written by Joe Adams and originally posted on the FL Condo HOA Law Blog

State Changes Barbecue Grill Rules

Q:        Has the law been changed to allow grilling on condominium balconies? (J.S. via e-mail)

  1. Yes. The Sixth Edition of the Florida Fire Prevention Code, effective December 31, 2017, permits the use of certain electric grills on condominium balconies. A new edition of the Florida Fire Prevention Code is required to be adopted by the State Fire Marshall every third year, pursuant to Section 633.202 of the Florida Statutes.

The current edition of the Code is based on the 2015 NFPA 1 Fire Code. With respect to cooking equipment, Section prohibits using or kindling hibachis, grills, or other similar devices for cooking, heating, or any other purpose on any balcony, under any overhang portion, or within 10 feet of any structure, other than in one and two-family dwellings. However, Section allows listed electric portable, tabletop grills, or other similar apparatus, so long as they do not exceed 200 square inches of cooking surface.

Even if permitted by the Code, you would need to confirm that your association has not adopted any rules which prohibit the use of electric grills and similar items on the condominium property. Board made rules, if reasonably related to safety, can be stricter than the minimum requirements of state law.


Written by Joseph Adams and originally posted on the FL Condo HOA Law Blog

Is it too soon to start talking about the 2018 Hurricane Season?

No! If Hurricane Irma taught us anything it is that adequate preparation before the storm will go a long way towards addressing issues after the storm.

Now is the time for associations to communicate with its owners about insurance- and liability-related issues. One of the often-confusing areas for many is understanding the scope and reach of the association’s insurance coverage versus the insurance coverage obligations of individual unit owners. Generally speaking, the association’s insurance coverage will only address the common elements. It will be up to individual unit owners to secure adequate insurance coverage for their own units.

If there is any confusion associated with insurance-coverage-related issues, the time is now to speak with an insurance agent to ensure that both your community and personal unit are adequately insured.

Speaking of insurance, associations should safely store copies of all of their applicable insurance policies. To the extent digital copies can be arranged for these insurance policies then that should be arranged too. These policies should be stored not just safely but stored in a manner that permits the association to easily gain access to the information contained in those policies after the storm has passed.

In the event that an insurance claim will need to be pursued then it is important to have “before” photos and videos of the property. In other words, take the time now to document, photograph and video your property. This will allow you to compare and contrast the extent of your damage “after” the storm hits. You can then present both “before” and “after” photographs, and videos, to an insurance company in support of your insurance claim.

Associations should also develop a plan to address a catastrophe. Since many associations are not just communities, but also families, these plans should include items such as cell phone communications and even meals. In the event of a lengthy power outage the association may want to take steps to have a generator present to have warm meals prepared for its members. The generator may also serve as a means to permit many individuals to charge their cell phones and other electronics to permit the members of the association to adequately communicate with their loved ones. The point here is that in addition to the traditional hurricane planning associated with many communities that focus on protecting the property, take some time to consider quality-of-life issues for the community in the event of a lengthy power outage or other related issues.

After a hurricane we often see many individuals, and companies, swoop in from out of town and promise many associations millions of dollars in insurance proceeds. But these groups often fail to deliver on those promises. Rather than falling victim to the overzealous, post-storm claim professionals promising riches, the better practice is to put your team in place before the storm hits. That way as soon as the storm passes and it is safe to start working on your insurance claim, your pre-screened professionals can begin the process for you. It would also be just as important to discuss all of these issues with your association’s legal counsel as well.

Addressing these issues now will ensure that your community is prepared for the 2018 hurricane season before it even starts.


Written by Hugo Alvarez, ESQ and originally posted to the FL Condo HOA Law Blog

Medical Marijuana and Your Florida Community

Citizens in the Sunshine State approved Amendment 2, which legalized the use of medical marijuana, by a 71% margin. Florida is expected to log more than $1 billion in medical marijuana sales by 2019, according to a report compiled by marijuana industry analysts New Frontier Data and Arcview Market Research. The full extent of this decriminalization of a Schedule 1 substance remains to be seen and much will depend on the rules governing medical marijuana which have yet to be passed by the State Legislature and the Department of Health. In terms of your community association, it is a safe bet that at some point an owner or resident will be discovered using marijuana in his or her unit or on the common elements or will request the use of same as a reasonable accommodation for a disability.

On December 29, 2014, the U.S. Department of Housing and Urban Development (HUD) issued a Memorandum regarding the use of marijuana in multifamily properties. That Memorandum reinforced that while the use of marijuana for medical purposes has been decriminalized by several states in our Union, the Controlled Substances Act (CSA), 21 U.S.C. Section 801, et. Seq. still classifies marijuana as a Schedule 1 substance and therefore the manufacture, distribution or possession of marijuana remains a federal crime.

HUD emphasized in that Memorandum that a public housing agency or owner of federally assisted housing must take active steps to terminate the tenancy of any household with a member who illegally uses a controlled substance or whose use of such substance interferes with the health, safety or right to peaceful enjoyment of the premises by other residents.

Naturally, the following questions have arisen with regard to private housing providers like condominium, cooperative and homeowners’ associations:

  • Do community associations have a duty similar to that imposed on public housing providers to deny occupancy to residents who will be using a substance that remains illegal under federal law?
  • Can a Florida resident request a reasonable accommodation to use medical marijuana and must the association grant that request?
  • Can the association inquire on a purchase or rental application whether or not any of the proposed occupants in the home or unit currently use or plan on using marijuana?
  •  Are owners who rent out their properties to Section 8 tenants required to investigate possible marijuana use and deny applications accordingly if such use is confirmed?
  • Does the prescription for medical marijuana mean an individual automatically has a disability as defined by state and federal law?

There is analogous case law we can consider when discussing the topic of medical marijuana use and its attendant issues for your community. In the case of Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180 (Fla. 4th DCA 1975) the Court was presented with the question of whether a condominium association, through the exercise of its rule-making powers, could prohibit the consumption of alcoholic beverages in the common areas of the condominium. The Court held that the restriction on the consumption of alcoholic beverages was reasonable because it was designed to promote the health, happiness and peace of mind of the majority of the unit owners.

If an association were to pass a rule restricting the use of marijuana, medically prescribed or otherwise, on the common areas and perhaps even inside the units, the Board would have to clearly articulate its reasons for doing so. In the case of marijuana those reasons might include:

  • The fact that the use of the substance remains a crime under federal law regardless of the permissible use for certain medical reasons under Florida law.
  • The fear that the smoke from marijuana may create a hallucinogenic effect and/or health impact on others.
  • The impact on minors who might witness the use.

Since there are forms of marijuana (pills, edibles, oils) which do not emit smoke and thus are not easily detectable by others, allowing the use of the substance in other forms may provide a compromise position in some communities. In Florida, medical marijuana is now only available in ingestible form, although that may change.  Other communities may be most concerned about preventing the use of this substance on the common areas and limited common areas such as balconies or patios but for some communities, the concern may extend to use of the substance even inside the privacy of one’s unit, particularly if the building is old and the insulation between units is not great.

Fortunately, board members are not held to a standard of perfection; they are required, however, to be reasonable and to exercise prudent judgment when making decisions that impact their members and the community overall. In the case of medical marijuana use, the competing interests involved are clearly the resident’s desire to use the substance to alleviate the symptoms associated with a medical condition and the association’s concerns about the impact such use can have on the other residents as well as concerns about the continued criminality of such activity under federal law. Until accompanying rules are adopted by the State Legislature and the Department of Health (and those rules are imminent) the safest path to follow is to only allow medical marijuana (which is only available currently in ingestible form) to be used to treat children with seizures and a few other medical issues. It is too soon to predict how any claims brought under the Florida Fair Housing Act will fare.  Since the use of medical marijuana inside private residential communities is a new and emerging area, the decision on whether to regulate, restrict, prohibit or permit the use is one that requires a detailed conversation with the community’s association attorney who needs to be fluent in this area of the law.

Written by Donna DiMaggio-Berger and originally posted on FL Condo HOA Law Blog

Associations Should Prepare for Disaster in Advance

We are now over a month past Hurricane Irma.  While it certainly could have been significantly worse for Southwest Florida, many community associations are still working  through a variety of difficult issues, including processing insurance claims, continuing clean-up, and property restoration. While immediate attention must be paid to those issues, now is also a good time for associations to work on developing disaster preparedness and response plans for the future, or refining current plans based on what has been learned from this hurricane.

The steps that community associations can take to prepare for major casualties such as hurricanes, tornados, and fires, include review of what coverage is actually provided by your insurance policies, consideration of having flood insurance, and preparation of disaster preparedness and response plans. Now is the time. I have found that when years go by with no major hurricanes, people tend to lose focus on the importance of good planning. Human nature, I guess.

Section 718.111(11)(d) of the Florida Condominium Act requires a condominium association to use its best efforts to obtain and maintain “adequate insurance” to protect the association, the association property, the common elements, and the condominium property. The condominium statute does not specifically require flood insurance.  In fact, the law states that a condominium association “may also obtain … flood insurance,” implying that flood insurance is permissive, rather than legally required.

For condominiums located within designated flood hazard areas, flood insurance could be considered mandatory by the “adequate” insurance requirement of the statute. If flood damage occurs, not only the structure of the building may be damaged, but the electrical system, plumbing, and other utilities may have to be replaced in their entirety. In a high rise condominium building, unit owners on higher floors often forget that they also own a share of the lower floors. Further, windstorm insurance does not cover damage due to flooding, and vice versa. This could result in associations being underinsured in the event of damage due to both wind and flood. Further, a high percentage of flood claims occur outside of flood zones, so every association should take a hard look at this issue.

The Florida Homeowners’ Association Act, Chapter 720 of the Florida Statutes, imposes almost no insurance requirements on homeowners’ associations. The scope of required coverage and types of insurance required will be dictated solely by the governing documents. For attached structures, such as townhouses or villas, the difference between good and bad documents can mean the difference between financial success and disaster. Talk to your insurance agent and attorney to make sure the documents actually say what you want them to say, and are consistent with how you are insuring.

Associations should develop guidelines as to what actions will be done both before and after a disaster occurs. Before a disaster, associations should ensure that important documents such as insurance policies and association records are secured in a safe place, including having such documents on-line, designating an out of state contact for the association, and taking photographs and videos to document property conditions for insurance purposes.

After a disaster occurs, associations should rely on established relationships with contractors to perform emergency repairs. Associations should assemble a list of post-disaster contacts such as board members, management, attorneys, engineers, insurance agents, insurance adjusters, and so forth. There are, unfortunately, some opportunists and charlatans who chase these storms.

Associations should develop a program to keep owners informed regarding the status of association matters, for instance by email updates or posting on a website. Many association-owner disputes arise from these events. Some could be avoided with a little communication.

Hopefully, it will be a long time before we have to deal with these issues again. However, we certainly cannot count on it and should let Irma serve as a wake-up call that an ounce of prevention is often worth a pound of cure.

Written by Joe Adams and originally posted on FL Condo HOA Law Blog

Florida Condominium and HOA Directors Can Usually Serve on Committees

Question: Can a board member also be a member of a committee, such as the fining committee or the landscape committee? (L.D. by e-mail)

Answer: Yes and no. Generally, a board member can also be a committee member. However, there are exceptions. Section 718.103(7) of the Florida Condominium Act defines committee as “a group of board members, unit owners, or board members and unit owners appointed by the board or a member of the board to make recommendations to the board regarding the proposed annual budget or to take action on behalf of the board.” Such committees, sometimes called “statutory committees,” may clearly contain both (or either) board members and non-board members. The composition of other committees, usually called “non-statutory committees” is not addressed in the condominium statute.

The Florida Homeowners’ Association Act, Chapter 720 of the Florida Statutes, does not define what a committee is or its permissible composition.

To add a bit more to the legal complexity of a seemingly simple topic, Chapter 617 of the Florida Statutes, the Florida Not For Profit Act, authorizes the formation of committees, but only speaks to committees comprised entirely of board members.

Finally, many association governing documents address the composition of committees, and occasionally limit who may serve on committees.

In the absence of any provision in the governing documents to the contrary, I have always interpreted the law to mean that the board can create committees and that board members may be committee members. However, if a quorum of the board has been named to any particular committee, or if the committee in question is a “statutory committee,” that committee meeting would be subject to the “sunshine” rules, including appropriately posted notice for the members, allowing for member attendance and participation, and requiring that minutes be kept. Non-statutory condominium committees must also follow the sunshine rules unless the association’s bylaws exempt them.

In the homeowners’ association context, committees are also required to follow the sunshine rules if the committee has the authority to make the final decision regarding the expenditure of association funds or the committee has the authority to approve or disapprove architectural decisions with regard to a specific parcel.

One major exception involves fining and suspension committees, sometimes called grievance committees, compliance committees, or some similar name. Both the Florida Condominium Act and the Florida Homeowners’ Association Act specifically require that such committees be comprised of individuals who are not officers of the association, directors of the association, employees of the associations or the spouse, parent, child, brother or sister of such persons.


New HUD Guidance Limits the Use of Background Checks for Associations to Prohibit Discrimination

On April 4, 2016, HUD published guidance limiting housing providers’, including Associations’, use of criminal records in qualifying potential purchasers, tenants and occupants under the Fair Housing Act. What does this mean for Associations? It should be noted at the outset that HUD Guidance is not binding law, but it interprets how the law may apply to certain situations. As with any new guideline, the legal ramifications will develop on a case-bycase basis as matters are heard in court and the guidance is considered.


The federal and Florida Fair Housing Acts (“FHA”), in part, prohibit discrimination in the sale or rental of dwellings based upon race, color, religion, sex, disability (handicap), familial status or national origin. Discrimination claims are evaluated under a disparate treatment or disparate impact analysis. Disparate treatment occurs where an individual of a protected group is shown to have been singled out and treated less favorably than others similarly situated on the basis of an impermissible criterion. These claims generally involve intent. Disparate impact claims do not require a showing of intent or malice, but rather acknowledge fault based upon the effects of certain conduct or policies. Disparate impact claims usually rely on statistical data and analysis to establish that a policy that appears facially neutral actually has a disproportionate effect on a protected class.

HUD’s new fair housing policy regarding background checks is one of the first regulations using the disparate impact standard since the Supreme Court’s landmark case last summer in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. The Supreme Court unequivocally ruled that HUD and other agencies may use disparate impact as a cognizable cause of action to redress alleged discrimination.

HUD’s Guidance Regarding Background Checks

HUD states that this guidance was issued “concerning how the Fair Housing Act applies to the use of criminal history by providers or operators of housing and realestate related transactions.” At first blush, it is unclear how the FHA applies to this issue since having a criminal record is not a protected class. HUD explains that while having a criminal history is not a protected characteristic, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another. Using statistical data, HUD explains that nearly one-third of the United States population has a criminal record of some kind. “As of 2012, the United States accounted for only about five percent of the world’s population, yet almost one quarter of the world’s prisoners were held in American prisons.”

Importantly, in the United States, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population. Accordingly, criminal recordsbased barriers to housing are likely to have a disproportionate impact on minority members searching for housing. While HUD recognizes that there are certain situations in which a criminal history could warrant a denial of housing, the policy must be supported by a legally sufficient justification. In other words, where a policy or practice that restricts housing based upon criminal history has a disparate impact on members of a protected class, such as race or national origin, the policy or practice will violate the FHA if it is not necessary to serve a “substantial, legitimate, nondiscriminatory interest of the housing provider”.

It is important to note that this guidance does not entirely prohibit Association’s from disqualifying those with previous criminal records. Those convicted of violent crimes or felonies may still be disqualified from some kinds of housing under certain conditions. HUD’s guidance provides a three part test to evaluate whether or not the policy or practice is discriminatory.

In the first step of the analysis, a person or agency must file a complaint and prove that the criminal history policy has a disparate impact in a group of people because of their race or national origin. The complaining party or agency must present evidence, such as local, state, and national statistics, to prove that the policy disproportionately affects minorities and other “protected classes” under the Fair Housing Act.

Once a plaintiff or agency establishes through statistical data that a policy or practice disparately impacts people based upon race or national origin, the burden then shifts to the Association to demonstrate that the policy is justified – meaning – it is necessary to “achieve a substantial, legitimate, nondiscriminatory interest of the provider.” The Association must use statistics and evidence to prove that the goal of the policy may not be achieved by other means. HUD notes that the interests that underlie a criminal history or practice often involve the protection of other residents and their property. “Ensuring resident safety and protecting property are often considered to be among the fundamental responsibilities of a housing provider, and courts may consider such interests to be both substantial and legitimate….” The Association must be able to demonstrate, through reliable evidence, that its criminal history policy or practice actually assists in protecting residents’ safety or property.

Bald generalizations and stereotypes that people with arrest or conviction records pose a greater threat than those without such a record are insufficient to satisfy this burden. It should also be noted that HUD explicitly states that a policy or practice of refusing housing based upon one or more prior arrests, without convictions, cannot satisfy the burden of showing the necessity of the policy. Since an arrest, in and of itself, does not establish that a crime was committed, it cannot be used to exclude potential owners, tenants or occupants.

Similarly, “a housing provider that imposes a blanket prohibition on any person with any conviction record – no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then – will be unable to meet this burden.” A criminal history policy or practice must be narrowly tailored and must consider the nature, severity and recency of the crime in order to satisfy step two of the test

The third step shifts the burden back to the plaintiff or agency to prove that the housing provider’s interest could be served by another practice that has a less discriminatory effect. HUD suggests that the housing provider should conduct an “individualized assessment” of relevant mitigating factors instead of categorical exclusions. These factors might include the facts or circumstances surrounding the conduct; evidence that the applicant has maintained a good tenant history before or after the conviction; and evidence of rehabilitation efforts. This requires a subjective analysis of the facts surrounding each individual crime and the applicant him/herself. However, those convicted of the illegal manufacture or distribution of a controlled substance can be refused housing without any liability under the FHA. This does not include convictions for possession of drugs.

It goes without saying that an Association may discriminate against any person based upon any of the protected classes. Criminal history cannot be used as a pretext to exclude certain protected class members. For example, a policy of refusing housing to African American’s who have drug distribution convictions, while allowing whites with the same conviction to reside in a community is considered intentional discrimination.

To avoid the inherent pitfalls, to the extent possible, the best practices are:

• Do not impose blanket bans on renting to those with criminal history or arrest records.

• In analyzing a conviction, the Board must consider the nature and severity of the crime and how long ago the criminal conduct took place. • Educate and train all those who will come in contact with applicants concerning these issues.

• Keep screening policies pertaining to arrest records and criminal history specifically related to the safety of persons and property. The policy must distinguish between criminal conduct that indicates a demonstrable risk to resident safety and property (such as violent crimes) and criminal conduct that does not.

• Use a standard screening policy in compliance with Fair Housing and HUD regulations, and apply it equally to anyone who applies.


Written by JoAnn Nesta Burnett, Esq. Originally posted on Becker & Poliakoff Community Update

Can a Florida HOA Reject the Votes of a Tenant Proxyholder?

Question: I recently attended the annual meeting of my homeowners’ association. Many absentee owners sent in proxies. The association’s attorney advised the association to reject several proxies because they named a tenant as the proxyholder. The attorney said that only association members may serve as proxyholders. Is this true and should these proxies have been disregarded? (T.Y. via e-mail)

Answer: It depends. There is nothing in theFlorida Homeowners’ Association Act (Chapter 720 of the Florida Statutes) that specifies or limits who may serve as a proxyholder. The statute only provides that, to be valid, a proxy must be dated, must state the date, time, and place of the meeting for which it was given, and must be signed by the authorized person who executed the proxy.

The Florida Not For Profit Corporation Act (Chapter 617 of the Florida Statutes) similarly contains no limitations on who may serve as a proxyholder. Rather, this law provides that a member may vote by proxy executed in writing by the member or by his or her duly authorized attorney in fact. The only reason provided in Chapter 617 for rejecting a proxy appointment is if the secretary or other officer or agent authorized to tabulate votes, acting in good faith, has a reasonable basis for doubting the validity of the signature on it or the signatory’s authority to sign for the member.

While there is no legal limitation on who may serve as a proxyholder, it is possible (and somewhat common) that the association’s bylaws may do so. Such a provision, if properly adopted, in my opinion is valid. Many of my association clients include proxy limitations when updating their bylaws, but such restrictions are far from universal.


Originally posted on the Florida Conda HOA Law Blog

Wildlife Dangers Create Association Liability Concerns in Florida Communities

Question: We live in a gated community with a golf course. There are a number of lakes and ponds. Alligators seem to come and go, but are spotted frequently. In light of the recent tragedy that has been widely reported in the news, there has been discussion about posting warning signs. What are your thoughts on this? (A.L. via e-mail)

Answer: The association, as the owner of property, can be held liable if someone is injured on the property due to the association’s negligence. Negligence includes allowing licensees or invitees to enter an area of the owner’s property where risk of injury by a dangerous condition is foreseeable, but not readily apparent, and not warning the licensees or invitees of the danger.  The property owner has a duty to maintain the property in a reasonably safe condition and a duty to prevent injury through the issuance of adequate warnings of known, but hidden, dangers.

In 1996, Florida’s Second District Court of Appeal found that, generally speaking, the law does not require the owner or possessor of land to anticipate the presence of or guard an invitee against harm from animals ferae naturae (natural wild animals) unless such owner or possessor has reduced the animals to possession, harbors such animals, or has introduced onto his premises wild animals not indigenous to the locality. In the absence of reasonable foreseeability of the danger, the court found in this case that there was no duty on the part of a city to guard an invitee against a shark attack, or to warn of the possibility of such an occurrence.

In a 2004 decision, the Second District ruled that a landowner owes two duties to a business invitee: (1) to use reasonable care in maintaining its premises in a reasonably safe condition, and (2) to give the invitee warning of concealed perils that are or should be known to the landowner and that are unknown to the invitee and cannot be discovered through the exercise of due care. The court found that a hospital did not violate its duty of ordinary care to maintain the hospital in a reasonably safe condition, even though a patient was bitten by a black widow spider in the emergency room. The evidence showed that the hospital had maintained the facility in a reasonable manner, did not know that a black widow spider was on its premises, and had no previous incidents with black widow spiders.

The precedent most directly on point is a 1986 decision from Florida’s First District Court of Appeal. This case involved a University of Florida student bitten by an alligator while swimming in Lake Wauberg, a recreational facility operated by the University. In a split decision, the court found that the injured swimmer disregarded clear warning signs on the premises which warned of the dangers of alligators. The court also emphasized that the student ignored a “No Swimming” sign where the attack occurred. Thus, the University was found not to be liable for the injuries.

If your association knows of alligators on the premises, reasonable precautions should be taken in concert with advice from the association’s legal counsel and its insurers. Reasonable precautions might include, among other things, the posting of signs warning of the possible presence of alligators. Consideration might also be given to addressing other dangerous animals that might inhabit the property, such as poisonous snakes.

In addition, your association can contact the Florida Fish & Wildlife Conservation Commission’s nuisance alligator program for removal of alligators that might constitute a nuisance or pose a threat. The nuisance alligator hotline can be reached at 866-FWC-GATOR (866-392-4286), and more information about the program is available online at www.myfwc.com.


Originally posted on Florida Condo HOA Law Blog