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

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 10.10.6.1 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 10.10.6.1.1 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

Requiring Licensed Contractors is Valid

Q:        My homeowners’ association requires contractors to be licensed and insured as part of the approval process for architectural review. Are they allowed to do this? (K.L. via e-mail)

A:        The Florida Homeowners’ Association Act, found at Chapter 720 of the Florida Statutes, sets forth the process by which homeowners’ associations can perform architectural review. The Act limits the Association’s authority to that which is specifically granted or reasonably inferred from the declaration, or other published standards authorized by the declaration.

Therefore, it would depend on the language contained in the governing documents. Many homeowners’ associations governing documents contain provisions that require properly licensed and insured contractors. In my opinion, such a provision, if properly enacted, is valid.

Q:        I recently purchased a unit in a condominium association and have learned that my association does not have a website. Is this common?? (T.I. via e-mail)

A:        Although I have no statistics on point, I would guess that a majority of associations do not have websites. There is no legal requirement that a condominium association have a website or other online resources for unit owners.

However, as of July 1, 2018, condominium associations with 150 or more units will be required to maintain an association website that contains certain information that is accessible only to unit owners. The information that must be maintained on such websites includes the condominium documents, budgets, financial reports, certain contracts, as well as meeting notices.

Q:        I own condominium units in the same condominium. Can I send in my ballots to elect the board together, or do I have to send them separately? (K.G. via e-mail)

A:        You can send in the ballots for your units together, however separate “inner envelopes” must be used for each ballot, and the “outer envelope” must identify your units.

The Florida Condominium Act requires members to vote by “secret ballot,” sent in inner and outer envelopes. The inner envelope (sometimes called the ballot envelope) contains the ballot, and should have no markings or signatures. The outer envelope is pre-addressed to the association and must contain the voter’s name, voter’s signature, and voter’s unit number(s).

The Florida Administrative Code permits several inner envelopes to be contained within one single outer envelope sent by an owner with multiple units. However each inner envelope can only have one ballot.

Q:        Is it legal for a manager to prepare and sign a certificate of amendment verifying that amendments to our condominium documents were approved? (A.L. via e-mail)

A:        No. According to the Florida Supreme Court, the preparation of documents related to amendments is the “practice of law” and must be done by a Florida-licensed attorney.

As to signing the document, the law requires certificates of amendment to be executed with the “formalities of a deed.” This generally requires signature by either the president or a vice-president, with adherence to certain other formalities, depending upon the manner, generally including a requirement for witnesses and notarization. Although not required by law, some documents also require “attestation” by the corporate secretary, and this should also be followed where required.

Q:        My community has a “villas association” for my neighborhood and a “master association” for the entire development. Is it permissible for a villa owner to serve as a member of the board of both our neighborhood association and the master association at the same time? This would seem to be a conflict of interest to me. (T.C. via e-mail)

A:        There is no legal prohibition against serving on multiple boards governing different aspects of the same community, and it is not uncommon. There may be times when the interests of the “master association” and the “neighborhood association” are at direct odds, and in such cases the individual serving on both boards should recuse himself or herself from both matters.

 

Written by Joe Adams and originally posted to the 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

Grant Funding Available Now for Wind Mitigation Retrofits for Vulnerable Condominium Community in Florida

FAIR (Florida Association for Insurance Reform) is seeking a low to moderate income condominium community to benefit from a Residential Construction Mitigation Program (RCMP) grant from the Florida Division of Emergency Management.  The $194,000 grant will be used to supplement the cost of wind mitigation improvements that increase community safety and reduce insurance premiums and energy costs.  Senior communities receive preference.

Funding must be used for a systemic approach to wind mitigation that involves the entire residential structure; for example, replacing roof coverings as well as installing wind-resistant windows and doors.  Grant money will be awarded to residents with the most financial need.  PACE (Property Assessed Clean Energy), grant assessments, or other financing, can be used to finance the balance of the project costs.

FAIR will use the grant-funded project as a case study to present options and strategies for wind mitigation, creating a blueprint for community associations throughout Florida on how to plan and execute similar wind mitigation projects using a combination of PACE financing, grant money, and other funds to finance the improvements.  Actual insurance and energy savings will be documented to provide better guidance on cost benefits and payback periods.

If your condominium association is a senior (55+) and/or low to moderate income community in Florida and is interested in this grant funding, please contact FAIR at (754) 200-4538, mdeen@floridainsurancereform.org.  The deadline is Monday, December 12, 2016.

Before applying for the grant, please be sure that your Board has a clear understanding as to whether there are any requirements for an owner vote for alterations to the roofs, windows, and doors.  Contact your association attorney if you have any questions.

 

Originally posted on Florida Condo and HOA Law Blog

Our High-Rise Building Opted Out Of Fire Sprinklers, Now We Have To Do What?!

STATE FIRE MARSHAL CLARIFIES ENGINEERED LIFE SAFETY SYSTEM REQUIREMENTS AND DEADLINES

Many articles, seminars and correspondence from B&P and others have addressed the looming December 31, 2016 deadline for high-rise condominium and cooperative buildings to vote to opt out of the fire sprinkler retrofit requirements in the Florida Fire Prevention Code, and many communities have taken advantage of the opt-out process. However, many communities are unaware that there may be other fire safety obligations with which they must comply. In a recent Declaratory Statement issued by the Florida Department of Financial Services, Division of State Fire Marshal, the State Fire Marshal provided additional clarity on this issue for high-rise buildings. In In re David Woodside, President Florida Fire Marshals and Inspectors Association, Case No. 189152-16-DS (May 4, 2016), the President of the Florida Fire Marshals and Inspectors Association filed a petition with the State Fire Marshal, essentially requesting guidance on whether certain high-rise buildings that are not protected throughout by an approved automatic fire sprinkler system must instead have an approved Engineered Life Safety System (“ELSS”), and if so, what the deadline to comply with the ELSS requirement would be.

As supporting authority, the State Fire Marshal noted in the Declaratory Statement that the Florida Fire Prevention Code adopted the NFPA, including the Fire Code (NFPA 1) and Life Safety Code (NFPA 101), with certain Florida-specific amendments. The Fire Marshal referenced FFPC 101:31.3.5.11.1, which provides that all high-rise buildings, other than those meeting 31.3.5.11.2 or 31.3.5.11.3, shall be protected throughout by an approved, supervised automatic sprinkler system in accordance with 31.3.5.2. The State Fire Marshal stated that FFPC 101:31.3.5.11.2 provides that an automatic sprinkler system is not required where every dwelling unit has exterior exist access in accordance with 7.5.3. The Fire Marshal further stated that FFPC 101:31.3.5.11.3 provides that a “sprinkler system shall not be required in buildings having an approved, engineered life safety system in accordance with 31.3.5.11.4.” In addition, the Fire Marshal referred to FFPC 1:13.3.2.26.2.4, which provides that all existing high-rise apartment buildings shall be subject to the provisions of sections 718.111 and 718.112, Florida Statutes, which shall “supersede the requirements for an automatic sprinkler system.”

The Fire Marshal concluded that an ELSS would still be required in high-rise buildings if compliant automatic sprinkler systems were not present or if all of the dwelling units do not have exterior exit access. Specifically, the State Fire Marshal concluded that although a Florida-specific amendment to the Fire Code permits the fire sprinkler opt-out process from the general sprinkler retrofitting requirements, another Florida-specific amendment, FFCP 1:13.3.2.26.2.3, clarifies that if the entire high-rise building is not protected by an approved automatic sprinkler system, it must comply with the ELSS requirements if there is not an exterior exit access for every dwelling unit. Concerning the deadline for implementing an approved ELSS when required, the State Fire Marshal stated that the deadline would be December 31, 2019, pursuant to FFPC 1:13.3.2.2.26.2.3 of the Florida Fire Prevention Code.

Therefore, if your condominium or cooperative community is a high-rise building that has previously voted to opt out of fire sprinklers or your association plans to do so before the opt-out deadline, but otherwise is still subject to ELSS upgrade requirements, your community should begin preparing for any changes to your building’s current ELSS, if any, to comply by the December 31, 2019 deadline. The Florida Fire Prevention Code states that the ELSS, where required by relevant sections of the Florida Fire Prevention Code, must be developed by a registered professional engineer experienced in fire and life safety system design, approved by the Authority Having Jurisdiction (i.e. the local fire marshal), and shall include some or all of the following: partial automatic sprinkler protection, smoke detection systems, smoke control systems, compartmentation, and “other approved systems.” Of course, if your building currently has compliant automatic fire sprinkler systems throughout, or your community chooses not to opt out of the retrofitting requirements and plans to perform the fire sprinkler retrofit, then an approved ELSS will not be required, pursuant to the Florida Fire Prevention Code. Not sure if your building may be subject to additional ELSS requirements or how they may impact your community? We suggest contacting a registered professional engineer experienced in fire and life safety system design, and consult with your association’s counsel for legal guidance when needed.

 

Written by Lance D. Clouse, Esq. Originally posted on Community Update by Becker and Poliakoff