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: Is the association strictly liable if someone is injured due to a fall on association property?
-J.S., Pt St. Lucie
A: Many people assume if they get hurt while on association property due to no fault of their own, then the HOA is liable. However, this is not often the case. The law requires the injured person to prove that the association breached a duty of ordinary and reasonable care. The injured person must prove that the HOA controlled the premises that contained the hazard. Control is determined by authority to manage, direct, supervise, restrict or regulate the premises. Establishing that the HOA controlled the area where the injury occurred is only the beginning of answering the question of whether the HOA is liable.
The most obvious defense is that a dangerous condition did not exist. Oftentimes, the “hazard” may be considered so trivial that liability cannot attach as a matter of law. For example, the crack in the walkway may be so small that it is considered within the realm of acceptability.
The most common defense is that while a true hazard may have existed, the HOA lacked notice of the defect or dangerous condition. The HOA would not be liable if, for example, a visitor spilled sun tan lotion in an elevator at 12:39 pm and then a resident slipped getting into the elevator at 12:40 pm. Under such a scenario, although the slipping hazard existed, there is no proof the HOA either created the condition or that it had sufficient opportunity to know of the hazard and did nothing to clean it up.
The law does not require a property owner to constantly surveil and inspect, only that it make reasonable inspections of the property to ensure that it is in a safe condition. There is no hard and fast rule how often inspections should be made. Each is dependent on the circumstances of each situation. Written reports should be made and preserved documenting when regular inspections are made, and these reports should be kept for four years, which is the statute of limitations period to bring a personal injury claim in Florida.
Q: I replaced my condominium windows a few years ago with high impact glass. The original building provided by the developer did not have hurricane glass. My condominium documents provide that I am responsible to repair, replace and maintain the windows in my unit. Who insures the windows?
-R.A., Jensen Beach
A: It is possible that your documents would require a different analysis, and therefore I would need to review the condominium documents to provide a complete answer, but the short answer is that the Association is likely responsible to insure for the value of the original windows, and you may obtain insurance to cover the difference in cost of the upgraded windows. Florida Statutes section 718.111(11)(f) requires the Association’s insurance policy to cover all portions of the condominium property as originally installed or replacement of like kind and quality, in accordance with the original plans and specifications. Because the windows were originally non-hurricane glass, the above state would only require the Association to maintain insurance for the cost of “replacement of like kind and quality”, which would be less than the cost of upgraded windows. As part of your individual insurance policy, you should be able to obtain insurance for the difference because your documents specifically require you to maintain, repair and replace your windows.
Q: Our association’s marble entryway to the clubhouse gets slippery when wet. Does posting a “Slippery When Wet” sign protect us?
-C.Z., Vero Beach
In many cases, a property owner may be able to satisfy the duty of care by warning of danger. However, simply warning of a hazard can have unintended consequences. A sign stating: “Slippery When Wet”, would be used as evidence the property owner knew of a recurrent hazard every time it rains. The lawyer for an injured person who slipped and fell would claim, among other things, the property owner should have eliminated the hazard, not just warn of it. Other problem issues regarding warning signs arise, such as: Was the warning sign visible in advance of every entry point? Was it comprehended by a young child who may have fallen? It is best to eliminate the hazard rather than simply warn of it.
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: firstname.lastname@example.org. 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.