This week we will start our annual review of the legislative changes that impact community associations. On May 25, 2023, this column summarized SB 154, the “glitch bill” regarding structural inspections and reserves. SB 154 was signed by the Governing and is now effective. That column can be reviewed at https://beckerlawyers.com/reserve-and-inspection-laws-changed-news-press/.
There are several other bills that will apply to community associations, some directly, some tangentially.
HB 837 creates Section 768.0706, Florida Statutes, titled “Multifamily residential property safety and security; presumption against liability.” This law appears primarily aimed at apartment complexes and includes protection from liability for the owner if certain listed security actions are taken.
Community associations are not specifically identified as “owners” or “operators” in the statute. However, the term “multifamily residential property” includes the term “condominiums.” There must be at least 5 dwelling units on a particular “parcel.” The term “parcel” requires a distinct parcel identification number assigned by the property appraiser, which appears to vary county by county.
The new law establishes a presumption against liability in connection with criminal acts which are committed by third parties who are not employees or agents of the owner or operator, that occur on the premises if there is:
- A security camera system at points of entry and exit which records, and maintains as retrievable for at least 30 days, video footage to assist in offender identification and apprehension.
- A lighted parking lot illuminated at an intensity of at least an average of 1.8 foot-candles per square foot at 18 inches above the surface from dusk until dawn or controlled by photocell or any similar electronic device that provides light from dusk until dawn.
- Lighting in walkways, laundry rooms, common areas, and porches. Such lighting must be illuminated from dusk until dawn or controlled by photocell or any similar electronic device that provides light from dusk until dawn.
- At least a 1-inch deadbolt in each dwelling unit door.
- A locking device on each window, each exterior sliding door, and any other doors not used for community purposes.
- Locked gates with key or fob access along pool fence areas.
- A peephole or door viewer on each dwelling unit door that does not include a window or that does not have a window next to the door.
- A crime prevention through environmental design assessment, completed by January 1, 2025, and performed by a law enforcement agency or a designated Florida Crime Prevention Through Environmental Design Practitioner (designated by the Florida Crime Prevention Training Institute of the Department of Legal Affairs), where the owner or operator remains in substantial compliance with the assessment.
- Proper crime deterrence and safety training to current employees by January 1, 2025, and to an employee hired after that date within 60 days of his or her hire.
The burden of proof is on the owner or operator to demonstrate that they have “substantially implemented” the security measures outlined in the statute.
While the general rule of law is that one party is not liable for the criminal conduct of another party, the courts have carved out several exceptions, including specific cases involving both condominium and homeowners’ associations. Included in the factors looked at by the courts are “foreseeability” and whether the community markets itself as providing security.
Though the law is poorly written, it was probably intended to apply to condominium associations with more than 5 units, but that is a matter each association should review with its counsel as the law is poorly written on that point. I see no evidence that the statute is intended to apply to homeowners’ associations.
Next week we will continue with a review of some new laws dealing with changes concerning the display of flags within community associations, and changes to Chapter 720 concerning homeowners’ associations.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.