Nova Law Review Volume 26, Issue 1 2001 Article 1 Nova Law Review 26, 1 Nova Law Review∗ ∗ Copyright c 2001 by the authors. Nova Law Review is produced by The Berkeley Electronic Press (bepress). http://nsuworks.nova.edu/nlr : Nova Law Review 26, 1 Published by NSUWorks, 2001 1 Nova Law Review, Vol. 26, Iss. 1 [2001], Art. 1 NOVA LAW REVIEW Volume 26 2001-2002 http://nsuworks.nova.edu/nlr/vol26/iss1/1 2 : Nova Law Review 26, 1 NOVA LAW REVIEW VOLUME 26 FALL 2001 NUMBER 1 TABLE OF CONTENTS THE 2001 SURVEY OF FLORIDA LAW Community Associations .......................................................... Joseph E. Adams 1 Estates and Trusts ......................................................... Eloisa C. Rodriguez-Dod 37 Evidence Law .......................................................................... LeonardBirdsong 59 Property Law ..................................................................... Ronald Benton Brown 109 Joseph M. Grohman Public Employment Law ............................................................... John Sanchez 191 Tort Law ............................................................................ William E. Adams, Jr. 225 ARTICLES Bifurcation in Personal Injury Cases: Should Judges Be Allowed to Use the "B" Word ........................................................... Dan Cytryn 249 NOTES AND COMMENTS Have American Standards of Decency Evolved to the Point Where Capital Punishment Inflicted upon the Mentally Retarded Can No Longer Be Tolerated? .................... Lindsay Raphael 269 In the Wake of a Tragedy: The Earnhardt Family Protection Act Brings Florida's Public Records Law Under the Hot Lights ................................................................. PatrickN. Bailey 305 Medical Malpractice Litigation in Florida: Discussion of Problems and Recommendations ............. Edward L Holloran, III 331 Troubled Waters: Florida's Isolated Wetlands in the Aftermath of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers............................ DebraAlise Spungin 371 Published by NSUWorks, 2001 3 Nova Law Review, Vol. 26, Iss. 1 [2001], Art. 1 Community Associations:1 Statutory Changes and Appel- late Law 7/1/00-6/30/01 Joseph E. Adams* TABLE OF CONTENTS I. LEGISLATION ................................................................................ 2 A. Condominiums ................................................................... 2 B. Cooperatives...................................................................... 3 C. Homeowners'Associations.................................................. 3 D. Miscellaneous LegislationAffecting Community Association Operations...................................................... 4 II. APPELLATE CASE LAW ............................................................... 6 A . Introduction........................................................................ 6 B. Breach of FiduciaryDuty/Fort Claims............................... 7 C. Attorney Malpractice Claims............................................. 17 D. Condominium Cases ........................................................ 20 E. Homeowners'Associationand Covenant Cases .............. 25 * Partner, Becker & Poliakoff, P.A., Fort Myers/Naples, Florida. B.A. cum laude, University of Pittsburgh, 1981; J.D., University of Pittsburgh, 1984. Mr. Adams concentrates his legal practice on the law of community associations. Since 1992 he has served as a delegate to the Community Associations Institute/Florida Legislative Alliance, currently serving as its Chair, and has been actively involved in community association legislation and administrative rulemaking. He is a member of the College of the Community Association of Lawyers, based upon published writings, teaching, and speaking engagements in the field of community association law. He is the author of a newspaper column called "Community Life," which has appeared weekly in the Real Estate Section of the Fort Myers News-Press since 1996. Mr. Adams has lectured at the University of Miami's annual Condominium and Cluster Housing Seminar. Mr. Adams also wishes to thank his Associate, Michael E. Chapnick, for his assistance in compiling the materials in this survey. 1. The reference to "community associations" means any mandatory membership corporation tied to the ownership of real property, which corporation has a right of lien for the collection of assessments. See FLA. STAT. § 468.431(1) (2001). The most common forms of community associations are condominium associations, cooperative associations, and homeowners' associations. This survey covers 2001 Florida legislation and.appellate court cases from July 1, 2000 to June 30, 2001. Condominium related arbitration decisions, Declaratory Statements, and Division of Florida Land Sales, Condominiums and Mobile Home rules should also be examined by readers for a comprehensive review of legal authorities affecting Florida community associations for the period covered by this survey. Further, this survey does not cover issues involving timeshare developments, nor mobile home parks. http://nsuworks.nova.edu/nlr/vol26/iss1/1 4 : Nova Law Review 26, 1 Nova Law Review [Vol. 26:1 I. LEGISLATION A. Condominiums The most notable aspect of condominium legislation considered by the 2001 Florida Legislature was the bills that were not passed out of the session. Indeed, the only bill involving chapter 718 that was ultimately approved was a reviser's bill.2 Among the potentially significant bills that did not pass, including a couple that died on the calendar in the waning moments of the session, were the following: 1) proposed amendments to chapter 718 dealing with a variety of operational issues, including the ability to amend condominium declarations to restrict rental rights, 3 the ability to amend documents regarding alterations of common elements,4 amendments regarding the transfer of limited common element rights,5 and miscellaneous other operational provisions; 6 2) reorganization of the Department of Business and Professional Regulation, including the elimination of condominium arbitration;7 3) a proposal to substantially limit the scope of warranty rights enjoyed by condominium unit owners and their associations regarding construction deficiencies; 8 and 4) a proposed amendment to 9 eliminate the contention that documentary 1stamps0 be paid on a community association's foreclosure of its lien interests. 2. H.R. 667, 2001 Leg., (Fla. 2001). H.R. 667 corrects numerous perceived typographical and citation errors in various sections of the Florida Statutes, including several amendments to chapter 718. This bill was approved by the Governor on May 25, 2001, 2001- 64 Fla. Laws, effective July 3, 2001. 3. See Woodside Village Condo. Ass'n, Inc. v. Jahren, 754 So. 2d 831, 833 (Fla. 2d Dist. Ct. App. 2000). 4. See Wellington Prop. Mgmt. v. "Parc Corniche Condo. Ass'n, Inc., 755 So. 2d 824, 825 (Fla. 5th Dist. Ct. App. 2000). 5. See Brown v. Rice, 716 So. 2d 807, 808 (Fla. 5th Dist. Ct. App. 1998); 2000-302, § 50 Fla. Laws. 6. H.R. 1907, 2001 Leg., Reg. Sess. (Fla. 2001) (unenacted). Also treated at H.B. 207; S.B. 348 and S.B. 2210. 7. H.R. 1923, 2001 Leg., Reg. Sess. (Fla. 2001) (unenacted). 8. S. 1742, 2001 Leg., Reg. Sess. (Fla. 2001) (unenacted). 9. See State v. 100 La Peninsula Condo. Ass'n, Inc., Case No. 99-6646, Leon County, Florida (Fla. 1st Dist. Ct. App. 2001). 10. H.R. 1835, 2001 Leg., Reg. Sess. (Fla. 2001) (unenacted). Published by NSUWorks, 2001 5 Nova Law Review, Vol. 26, Iss. 1 [2001], Art. 1 2001] Adams B. Cooperatives To the knowledge of the author, no bills affecting cooperatives or cooperative associations" were considered nor adopted during the 2001 legislative session. C. Homeowners'Associations Likewise, no substantial legislation directly affecting the operation of homeowners' associations was passed during the legislative session. A local bill was considered which would have permitted Marion County to adopt special legislation for homeowners' associations. 12 A bill which did pass, but was vetoed by the Governor,'3 would have permitted homeowners' associations to apply for the vacation of public roads and the simultaneous conveyance of the same to a residential homeowners' association for the purpose of creating a gated subdivision upon a vote of four-fifths of the owners therein. One clause that was added to the homeowners' association statute was a newly enacted section 720.3075 of the Florida Statutes.1 4 This law, dealing with a variety of other topics,15 provides that any homeowners' association documents, including declarations of covenants, articles of incorporation, or bylaws, entered into after October 1, 2001, "may not prohibit any property owner from implementing Xeriscape or "Florida-friendly landscape as defined in section 373.185(1)" of the FloridaStatutes. 6 The statute defines "Xeriscape" or "Florida-friendly landscape" as "quality landscapes that to local conserve water and protect the environment17 and are adaptable conditions and which are drought tolerant., 11. See FLA. STAT. § 719 (2001). 12. H.R. 1901, 2001 Leg., Reg. Sess. (Fla. 2001) (unenacted). 13. H.R. 1053, 2001 Leg., Reg. Sess. (Fla. 2001) (unenacted). 14. FLA. STAT. § 720.3075 (2001). 15. Including a county's authority to convey property, tax deed application procedures, and tourist taxes. Id. 16. FLA. STAT. § 720.3075 (2001). 17. FLA. STAT. § 373.185 (2001). http://nsuworks.nova.edu/nlr/vol26/iss1/1 6 : Nova Law Review 26, 1 Nova Law Review [Vol. 26:1 D. Miscellaneous