Condo & HOA Law, Naples Daily News

Naples Daily News Q&A | July 25, 2021 | Signs Preventing Non-members the Right to Sue

Fort Myers Attorney Richard D. DeBoest, II | Florida Attorneys Goede, DeBoest & Cross

By Attorney Richard D. DeBoest


Q: I have been elected President of the Board of my Homeowners Association. We have signs (PRIVATE PROPERTY Homeowners and Guests Only) at the entrances to and around the lakes. We have always taken the attitude that we didn’t want non-members fishing in our lakes and slipping and falling and then suing us. We have been asked, in the spirit of neighborly relations, by a neighboring association, to allow their residents to fish in our lakes. Is there any legal sign, etc., that we could put up that would allow us to allow them to do this but prevent them the right to sue us if one should slip or and hurt themselves? Thank you.

A: You can place signs saying “Use at Your Own Risk” but this would not relieve the HOA of the obligation to keep the common area lake in a safe condition nor prevent someone from suing you for failure to do so or alleging you failed to do so. Similarly, having a person sign a waiver and release of liability to walk on your property, while helpful, will not stop them from suing you and even prevailing if they show you knew of an unsafe condition and did not correct it. This would also apply to your own owners too though. So, reducing the number of people using the lake reduces the odds of a slip and fall. So, while you want to be a good neighbor the Board must think of what is in the best interest of the HOA and not the neighbors. If the neighboring HOA wanted to sign an indemnification agreement in exchange for a use easement, agreeing that they would indemnify you from claims by their members that would be helpful and would provide you the most protection short of saying “no”. However, I would bet they will not sign such a document. You may also want to discuss this with your liability insurance carrier as they may have issues with allowing outsiders to use your common areas. Increased use means increased risk and they may want to charge you a higher premium. Simply put, while this may seem neighborly it is not in the best interest of your members to whom you owe a duty to allow this practice.

Q: We have a tenant who rents a home in our community. My question is, is the tenant allowed to invite an unlimited number of guests into the community when the rules and regulations are written as follows; “The use of Association Property, including but not limited to the Recreational Tract, by persons other than an Owner or family member, guests , invitee or tenants of the owner is strictly prohibited.” All the rules and regulations regarding usage of the Association Property and Recreational Tract are worded the same way. The interpretation of many people in the community is that the owner has the right to invite family members, guests , invitees or tenants ,however the tenant does not have these same rights based on the wording in the rules and regulations . We believe that only the owner can extend an invitation to people including his/her tenant. The reason for concern is that the tenant continually invites unlimited people from outside the community to use the sporting facilities. This puts what we believe is unnecessary stress on these amenities. The boards stance is that the way the rules and regulations are written it allows the tenant to invite unlimited guest just as the owner can . We do not see that based on the way it was written. The board also has stated that this also falls under the Florida Fair Housing Act . We do not see this also as it is a rule which provides guidelines on who can invite people to use our community amenities.

A: I agree with your Board’s interpretation of the provision you quote. Generally, when a home is leased the tenant assumes all the use rights of common areas and amenities of the owner. The Condominium Act, Section 718.106(4) expressly provides that “When a unit is leased, a tenant shall have all use rights in the association property and those common elements otherwise readily available for use generally by unit owners and the unit owner shall not have such rights except as a guest, unless such rights are waived in writing by the tenant.” While this same provision is not found in Chapter 720, the Homeowners Association Act, the same principle applies.

Q: Now that the State of Emergency in Florida has been lifted can we still hold virtual membership meetings and mandate virtual attendance only?

A: In some cases, yes and in some cases probably not for now. I will explain. Zoom and similar virtual platform member meetings have been allowed for many years under Chapter 617.0721(3) Florida Statutes, but were rarely used until Covid-19. However, the unclear part is now that the State of Emergency has been lifted whether the meetings can be virtual only or must you allow physical attendance too particularly when a secret ballot election is occurring. The Division of Condominiums takes the position that you cannot hold a secret ballot election virtually only because the law requires that the owners be allowed to pick up a physical ballot at the meeting and vote it right then and there. This cannot occur virtually because the election ballot envelope must be signed on the exterior and opened at the meeting. So, we recommend the members meetings where an election is to occur must be a combination of both physical and zoom attendance when the election is occurring. For membership meetings without a secret ballot election, I think you can hold virtual only meetings because when you are not holding a secret ballot election members can vote by proxy or voice at the meeting as long as you can identify them as being an authorized voter. I suspect the Division of Condominiums will be revising its rules to better facilitate virtual meetings. Note that for condominiums and cooperative secret ballot elections are required by law while in an HOA they are only required if your governing documents mandate them.