60 May 2012 FLCAJ

he 2012 Florida Legislative session has ended. It has been a tumul- tuous time. The budget crisis, changing priorities, and disputes between the three branches, legislative, executive, and judicial, exacerbated the uncertainty of how matters would end. In summary, the 2012 session did not adopt many bills that will have a direct impact on Florida community associations. Most of the bills that were introduced with great fanfare were left on the floor at the time of

2012 Legislative Update, Part II

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floridalaw

by Michael J. Gelfand, Esq.

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which are anticipated to have the greatest impact on Florida commu-nity associations, are posted at www.gelfandarpe.com. Access the bills through our homepage by clicking on “2012 Statutory Update.” This website will be regularly updated as bills become law. Please recall that, as in the past, the legislature does not instanta-neously deliver adopted bills to the governor. Instead the bills are delivered in a moderated flow. This allows the governor’s office to consider, not to be deluged by, the flood of bills adopted during the last week of the session. It can take as long as a month, or more, before a bill is delivered to the governor. Bills of great impact to the entire state usually proceed first, such as those impacting budget and public safety. While vetoes are rare, vetoes are not unknown, especially in the area of community association law. The adopted bills that are deemed to have the greatest direct impact on Florida community associations are summarized below. Please also recall that bills are subject to judicial review for constitutional infirmi-ties and for interpretation. The effective date of each bill summarized below that becomes a law is July 1, 2012. HB 0013—Sovereignty Submerged Lands Section 253.0347 is created to extend leases issued by the state for private, residential docks or piers for up to ten years. Leases must include the amount of lease fees, exempting fees for leases involving: no more than one wet slip for each approved upland residential unit; areas preempted; areas of ten square feet or less for each linear foot of shoreline; or, for transfers of fee simple or beneficial ownership of

adjournment. Bills failing to move forward included: HB 0319, concerning community associations; SB 0692, regarding liens for collection expenses; HB 0762, regarding manager charges; and SB 1830 concern-ing tenant evictions. A small number of bills, if they become law, will impact Florida community associations and the owners and residents of property administered by these asso-ciations. As a reminder, the Florida Legislature’s adop-tion of a bill does not create a law. The Florida Constitution provides that after the end of the Legislative session, a bill does not become a law until 15 days after the bill is delivered to the governor. As a service to clients, actual text of bills adopted,

62 May 2012 FLCAJ

Now, in a decision that will impact community associa-tions, it appears that the Florida court has gone one step further and determined that a landowner may in fact be liable for injuries sustained as a result of a pothole even if the pothole is open and obvious where the landowner failed to maintain the premises in a reasonably safe condition. A Florida appellate court recently held that a land-owner has a duty to maintain the premises in a reasonably safe condition even where a danger is open and obvious. In Burton v. MDC PGA Plaza Corp., 37 Fla. L. Weekly D 348 (Fla. 4th DCA, February 8, 2012), Burton, a woman brought in to help with the opening of a new CVS store,

homestead exempt property. Lessees must pay a fee on income derived from a wet slip dock or pier. The Department of Environmental Pro-tection shall inspect private docks or piers every ten years to determine lease compliance. HB 0517—Reducing Regulations In a 45-page bill intended to reduce regulations, Section 36 extends the bulk buyer exception in the Condominium Act, Section 718.707, known as the “Distressed Condominium Relief Act” from July 1, 2012, to July 1, 2015. This extends the ability of certain buyers of many con-dominium units to avoid many developer obligations, such as con-struction warranties for pre-existing improvements and certain other turnover requirements. HB 1013—Residential Construction Warranties Section 55.3835 is created to rescind the effectiveness of the decision in Lakeview Reserve HOA v. Maronda Homes, Inc., 48 So.3d 902 (Fla. 5th DCA, 2010), prohibiting a cause of action by the purchaser of a home or a homeowners association based on the doctrine of implied warranty of fitness and merchantability or habitability for off-site improvements that are not otherwise provided by contract or a statute, including provisions of the Condominium Act and Cooperative Act.

Failure to Fix a Pothole May Lead to Liability Previously, a Florida court ruled that a property owner owes two duties to its business invitees: a duty to warn of concealed dangers and a duty to maintain the premises in a reasonably safe condition.

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This case is important to all Florida associations because it points out that a landowner really has two duties: one is a duty to warn of a dangerous condition and the second is a duty to maintain the premises in a reasonably safe condition. Both of these duties must be complied with to avoid liability when someone is injured on your premises! Florida homeowners association that own property and Florida condominium associations that administer property can no longer assume that a danger can be ignored if the danger is obvious. Michael J. Gelfand is a Partner in the law firm of Gelfand & Arpe, P.A., in West Palm Beach, Florida. You may reach him by e-mail at Michael@flcaj.com or by phone at (561) 655-6224. !

was seriously injured when she stepped into a pothole while loading a vehicle in the back of the store. The previous week, Burton noticed the pothole and informed CVS’s manage-ment of the pothole. Burton sued CVS and its landlord alleging that CVS and its landlord breached their duty to exercise reason-able care in the maintenance, inspection, and repair of the premises by allowing a pot-hole to form and then failed to warn Burton of the dan-gerous condition. CVS and the landlord argued that because the pothole was so open and obvious that the pothole could not be consid-ered a dangerous condition, they had no duty to warn Burton. The trial court agreed that Burton could not recover because she knew about the pothole and granted summary judgment in favor of the defendants. The Florida appellate court concluded that Burton’s working knowl-edge of the pothole did not discharge the defendants’ duty to maintain the prem-ises in a reasonably safe condition. The court pointed out that a land-owner’s duty to warn of a dangerous condition is separate and distinct from the duty to maintain the premises in a reasonably safe condition. “A plaintiff’s awareness of a dangerous condition does not negate a defendant’s potential liability for negligence in allowing the dangerous condition to exist; it may be relevant, however, to a determination of comparative negligence.”