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Unpacking the Legislative Changes Impacting Florida Community Associations


In the rapidly evolving world of community associations in Florida, new legislative adjustments have necessitated a swift and informed reaction from legal professionals. The legal landscape of community associations has been dramatically transformed, primarily due to two legislative areas: tort reform and construction defect claim reform. In light of these modifications, community associations, lawyers, and homeowners alike face unprecedented change.

Tort Reform and Its Impact on Community Associations

At the center of these modifications is House Bill 837, which has redefined the statute of limitations for negligence claims. Previously, a generous four-year window permitted the filing of such claims. However, this duration has been sliced in half, now restricting such cases to be presented within two years. This abrupt transition has set off an avalanche of lawsuits as lawyers rush to file cases beyond this two-year limit.

This limitation overhaul requires that board members and managers maintain a vigilant eye on the ticking clock when filing lawsuits or claims. It's essential to distinguish between a negligence claim filed by the association and a covenant enforcement action, both affected differently by these legislative changes.

Understanding Different Types of Claims

The importance of accurately identifying a claim's nature cannot be overstated. Depending on the circumstances, a provision in the Declaration may necessitate reimbursement from a negligent unit or lot owner. This repayment can be framed as a covenant enforcement action, bypassing the two-year statute of limitations.

It is highly recommended that associations consult with legal counsel, particularly a general or litigation attorney, to avoid missing out on potential claims. Security measures and claims related to third-party criminal acts on a property are equally noteworthy, as these issues are covered extensively in the new bill.

Navigating Liability with Intentional Torts and Criminal Acts

The new legislation has shifted the approach to intentional tort cases, compelling the court to assess everyone's fault involved, including the injured party, the association under the lawsuit, and the perpetrator of the act. This framework is particularly significant in cases of intentional torts, where earlier, certain damages weren't subjected to apportionment.

Simultaneously, the law introduces liability protections for associations operating multi-family residential properties, provided they have implemented specific security measures in response to criminal activity. This provision places associations in a powerful position to deny liability, provided they can demonstrate adequate security measures such as a robust security camera system, sufficient lighting, trained security staff, and key-card or code-controlled access gates.

Maintaining Safety: A Mandatory Expectation

Under the new guidelines, associations must adhere to strict safety procedures. These requirements include maintaining well-illuminated parking lots and walkways, installing lockable exterior doors complete with peepholes on each unit door, and securing pool areas with lockable gates that require a key or fob for access. The law also advocates for crime prevention through environmental design assessments, diligent employee training, and robust onboarding procedures for new hires.

Amid these safety procedures, the law stipulates that the number of dwelling units on a parcel determines the application of the 'smart board law,' creating confusion around townhome communities governed by HOAs. Furthermore, the law has potential profit implications for vendors, security companies, camera, and lock providers, and insurance companies.

The Transition to a Modified Comparative Negligence State

Florida's transition from a comparative fault state to a modified comparative negligence state has far-reaching implications. This change influences the compensation awarded in lawsuits involving accidents or injuries caused by negligence. In this new system, it is imperative for associations to document accidents promptly and establish thorough accident investigation procedures.

Associations must remember that documenting an accident could prove decisive in showing that the injured party was more than 50% at fault. This allocation of fault significantly affects the payout of claims and the injured parties' ability to recover from injuries. Furthermore, there's a significant focus on attorney's fees, especially on multipliers. It's important to note that the legislature has now put limits on this, stipulating that attorney's fees, in most cases, cannot surpass the total recovery amount.

Calculating Attorney's Fees in Legal Cases

As a key change in the legal landscape, attorney fees are now determined by the 'lodestar' method. This involves considering the time litigators have spent on the case and their hourly rates. While it is presumed that the lodestar fee is reasonable, challenging this could only occur under rare and exceptional circumstances.

Construction Defect Claim Reform: A Closer Look

Regarding construction defect claim reform, the changes have seen a four-year statute of limitations continue for actions related to design, planning, or real property improvements. However, the trigger point for this timeline now rests on when a temporary certificate of occupancy is issued. The deadline for latent defect claims has also been curtailed, reducing to seven years.

Navigating Construction Defects in Condominiums

Condominium situations present their unique challenges. For instance, 718 124 stipulates that a cause of action on behalf of a Condominium Association does not accrue until turnover. The seven-year time frame does not extend this statute in the case of latent defects. This creates a complex scenario, potentially leaving communities without recourse for construction defects.

Given this uncertainty, it's wise to conduct an engineering study as early as possible, preferably even before turnover. Homeowners, they might need to act before turnover to safeguard their claims. In addition, construction performed under a duly issued building permit may not extend the statute of limitations or repose. Interestingly, the legislature has included a clause providing a limitation extension for those who purchased the model home.

Understanding Statutes of Limitations for Property Management Legal Cases

Recent statutory changes have extended the deadline for filing access claims until July 1st, 2024. This is applicable even if the statute of limitations had previously expired. Each building is treated as a standalone for multi-building properties when determining a limitation period, leading to potential confusion. Lastly, introducing the term "material violation" in the Florida building code now requires engineers to highlight any code violation that may significantly impair a building's performance or systems.

Navigating the New Property Management Legal Guidelines

These newly adopted terminologies in property management legal guidelines pose challenges for engineers. Given the unfamiliar language in these guidelines, testifying in trials or depositions can become daunting. Moreover, engineers will now have to answer questions regarding every defect, further increasing the complexity of their role.

On a brighter note, these guidelines may provide some benefits by limiting owners' rights to pursue negligence charges. However, the industry will undoubtedly grapple with these changes' added complexities.

Confronting the Limitations of Pursuing Developers for Warranty Claims

Lastly, the limitations of pursuing a developer for warranty claims, especially in larger communities built over an extended time, are a noteworthy concern. For instance, a Master Association spanning 30 years with over 7,000 homes may find this a daunting task. While there are some routes for connected townhomes to recoup costs from the developer for negligent maintenance, financial claims, etc., the extended statute of limitations and warranty exit provisions in HOAs offer little consolation.

The bottom line is that while these legal changes have brought a mix of opportunities and challenges, staying well-informed and proactive is essential to navigating this new legal landscape successfully. It's always advisable to seek professional counsel when needed, and remember that the session will be recorded and available on their website for future reference.