Recreation area poses a liability question

05/03/2014 12:00 AM

09/12/2014 3:59 PM

Q: Our community has a recreation lot on a lake that includes a picnic area as well as a boat ramp and dock. There is a sign posted at the entrance to the area that indicates it is for the use of HOA members and guests. The guests must be accompanied by an HOA member. We have a locked drive-through double gate for car and boat access as well as an unlocked gate for foot traffic.

Often non-HOA people walk through the unlocked entrance and use the dock. Does the HOA have any liability if an unauthorized person is injured while on the lake lot?

D.G., Orlando

A: There is a possibility that if a person were injured in this area that they could sue the association. You must take whatever action that you can to eliminate as much liability as possible. There is a legal term that you should be aware of: “attractive nuisance.”

Attractive nuisance usually comes up when children play in an area where they could be injured. Lake water or the dock would fall under this area of liability.

Since you have one gate already locked, how difficult would it be to place a lock on the other gate? However, even if you lock the gate, children could climb the fence. You must take as much action as reasonably possible to prevent unauthorized persons from entering the area.

I would suggest board members discuss the matter with their insurance agent and attorney. The insurance agent may provide alternate solutions to prevent unauthorized entry into this area.

Q: We live in a 30-unit condominium association. Our board asked us to give it permission to rewrite the condominium documents — and we did. We were not allowed to vote on the new documents.

Do we have the right to ask for a vote on the new documents? If so what percent of the association is needed to pass the vote? They also deleted the need for a quorum at their meetings. Is this allowed?

M.B., Miami

A: One of the fundamental determinations in developing new rules is to be able to enforce the new rule. What were the members thinking when they gave away their rights?

I do not believe the members have the right to give the board full control over any modifications to the documents. Therefore, can the board enforce the changes? Keeping in mind that the documents determine certain title rights, I am not sure that the members can just say to the board “do anything with my title you want.”

You need an attorney to determine if that vote was proper, misleading, or really gave the board carte blanche rights. When you modify the documents, I always recommend that an attorney draft the changes and guide you through the approval process.

As to the percentage of votes needed, that would be determined by the statutes, documents, and what changes you are voting on. The quorum for meetings is regulated by the statutes and your documents. I would recommend that the board seek legal guidance.

Q: Our HOA board was elected six months ago. They have selected a monthly meeting time, but never post an agenda. At the meetings the board discusses and votes on items and then homeowners get a chance to speak at the end of the meeting. I object to the lack of an agenda and the order in which business is conducted. Do any of the board’s actions violate statutes?

W.W., Bonita Springs

A: One of the shortcomings of the homeowner association statutes (FS 720) is that they only require the board to post a meeting notice 48 hours in advance of the meeting. The agenda is not required for this HOA meeting notice.

As an owner you have a right to complain and suggest that the board also include the agenda for the meeting. It is just simply good operating procedures. The board should be happy to provide the members with that information in their meeting notice.

If they do not include the agenda it can present an appearance of secret actions. It is best to keep the members informed with good communicating procedures. The meeting notice for condominiums requires that an agenda be posted with the meeting notice. I suggest that HOA boards do the same or at least have copies available at the meeting for the members.

Join the Discussion

Miami Herald is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere on the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Terms of Service