TC Palm Q&A Column, February 18, 2018

By February 18, 2018News, Questions & Answers

Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC respond to questions about Florida community association law.  The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.

Q: There is one home in our community that has been vacant for years and the mortgage foreclosure is coming to an end.  Neighbors are complaining that the home is infested with rats and termites. Does the HOA have any liability here?

-RJ, Vero Beach

A: Probably not.  In a homeowners association, must governing documents provide that the owner is responsible to maintain the home, and specifically the interior of the home.  If this is true, then the homeowners association has no duty to go inside the home and remediate.

There are certain situations where a homeowners association has a duty to warn the community concerning dangerous conditions or foreseeable criminal activity.  In this context, there are some court decisions holding that the homeowners association owes the same duty to the residents as a landlord owes to a tenant. So, if the activity inside the home were escaping and creating a nuisance or a potential danger within the community, there may be some duty to act or warn the neighborhood, but assuming the termites are confined to the single residence, and assuming the rats are not causing a nuisance in the community, it is difficult to argue that the homeowners association has a duty to act or warn.

The answer could be different depending on the responsibilities set forth in your specific governing documents, so I would recommend having the governing documents reviewed by a licensed Florida attorney.

Q: When our community was built, the developer installed beautiful oak trees along the road between the roadway and the sidewalk.  The roots stemming from these trees are now wreaking havoc with damage to driveways and the sidewalks. Who is responsible to repair this damage?

-TP, Treasure Coast

A: This is a great question.  The first step is determining where your lot ends, and where the road begins.  Most homeowners do not realize that their lot usually does not go all the way to the street.  Rather, the lot usually begins immediately after the sidewalk ends, so the sidewalk and the landscaping between the sidewalk and the street is usually owned by the homeowners’ association.  You can confirm this by looking at your community’s plat and determine the width of the roadway, which is usually 25 or 30 feet on each side of the center of the road. If the trees and damaged property falls within that property, it means the damaged property is technically not on your lot.

The next issue is determining the rights and responsibilities in the governing documents.  The apron to your driveway, for example, probably rests within the roadway and not on your actual lot.   So, if the governing documents were silent, you would argue that the entity responsible to pave the street is the same entity responsible to repair the driveway apron when damaged by the tree roots.  That being said, I have also seen and drafted governing documents requiring the lot owner to maintain, repair and replace the driveway all the way to the paved roadway, even if the apron falls outside your lot boundary.

The final issue is determining whether a party was negligent and how to move forward.  When the roots are underground, it is difficult to argue that the homeowners’ association or the owner are negligent in maintaining the root system.  The situation is obviously different where the community has an outbreak of root damage, or where the roots have been visible and causing visible damage for an extended period of time, but generally the documents and plats will dictate who is responsible without being able to shift liability to another party.

Florida law does provide that a landowner is legally able to trim roots and vegetation up to their property line, so it is advisable for the homeowners association to meet with legal counsel and a landscape expert to determine an appropriate delegation of responsibility and, if appropriate, a plan to mitigate root damage moving forward.

John C. Goede Esq. is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Ask questions about your issues for future columns send your inquiry to: question@gadclaw.com.  The information provided herein is for informational purposes only and should not be construed as legal advice.  The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC 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.