Slippery Algae and Pre-suit Mediation

By Michael J. Gelfand, Esq. / Published August 2024

Slippery Algae Slides You into Court

     Here in Florida, everyone knows that the climate we love also loves something we usually do not love. Algae grow everywhere—on the ground, on sidewalks, on walls, and even on decks. And algae grow like wildfire!

     What are the duties of community associations to stop the slime? Of course, there is the flip side: what happens when someone slips and falls on the algae that was not cleaned? Will the property owner be liable for negligence?

     A recent Florida appellate court decision provides guidance and warnings for Florida community associations as well as for all who own or control Florida real property. In Williams v. Weaver, 49 Fla. L. Weekly D 610 (Fla. 5th DCA, March 15, 2024), the decision indicated that Williams went to Weaver’s house to perform lawn services. While walking onto a deck located on the front lawn before beginning his work, Williams slipped on a dark area covered in algae, fell, and injured his back.

     Williams sued Weaver for negligent maintenance of the property. Weaver testified that he cleaned the deck annually, but he also said that it had not been cleaned for several months. When shown a photograph of the deck taken at the time of the incident, Weaver admitted that the deck needed to be cleaned at that time.

     One might think that was it. The failure to clean would have meant automatic liability for property owner Weaver, but that was just one factor for analysis. The trial court determined that the algae on the deck was “open and obvious” and that it was “common sense” that one could fall on the deck. Thus, the trial court granted a summary judgment for Weaver, concluding that a trial was not necessary because a reasonable jury could not find otherwise.

     The Florida appellate court disagreed with the trial court’s decision not to hold a trial and reversed the trial court decision. The appellate court’s analysis began with recognizing the age-old precept that a property owner owes a duty of care to a business invitee such as Williams and that the owner must maintain their property in a reasonably safe condition.

     This gives rise to two distinct duties of a property owner: (1) give warning of concealed perils, which are known or should be known to the property owner but are not known to the invitee, and (2) maintain the premises in a reasonably safe condition.

     The appellate court then explained a critical distinction. Whether a danger is open and obvious is not the question of whether the object, in this case the algae on the deck, is obvious. Instead, the question is whether the dangerous condition of the object is obvious. In addition, the property owner still has a duty to maintain the property in a reasonably safe condition.

     This decision will likely be a warning for Florida associations that actually own property, such as cooperative and many homeowners’ associations, as well as condominium associations that administer common elements and association property. A belief that a dangerous condition is open and obvious may not protect an association from claims and trials.

     Returning to the beginning, this decision reinforces the need for most Florida associations to properly inspect their premises and make timely efforts to maintain their premises. Perhaps in Florida this also means, as a practical matter, once a year cleaning of a deck may not be often enough!

Failure to Comply with Pre-suit Mediation Requirements Causes Property Owner’s Lawsuit against Association to Be Tossed

     Do NOT Go Directly to Court! It is not Monopoly®, and the money is not pastel play dollars. For quite some time laws have required Florida community association litigants to air many disputes in mediation or arbitration before going to court and filing a lawsuit. The process is referred to as mandatory pre-suit arbitration or mediation or alternative dispute resolution.

     What is the consequence of not complying? It can be very costly, both in terms of money and losing face!

     Recently a Florida appellate court ruled, in a decision that will impact owners in Florida condominium, cooperative, and homeowners’ associations, that a property owner’s lawsuit against her association must be dismissed because the owner failed to comply with the Homeowners’ Association Act’s mandatory pre-suit mediation requirements. In Dunmar Estates Homeowner’s Association, Inc. v. Rembert, 49 Fla. L. Weekly D 502 (Fla. 5th DCA, March 1, 2024), Rembert, a property owner, requested records from the association.

     Having decided that she was denied access to all of the requested records, Rembert sued the association for failing to provide her with timely access to records. However, Rembert did not first comply with the Act’s mandatory pre-suit mediation requirements. The trial court denied the association’s motion to dismiss.

     The Florida appellate court disagreed with the trial court’s denial, finding that Rembert’s case must be dismissed. The court pointed out that the Act, Section 720.311(2)(a), Fla. Stat. (2021), specifically provides that an “aggrieved party,” Rembert, is required to serve a demand for pre-suit mediation before filing a lawsuit if there is a dispute between the parcel owner and the association about any of the following:

• Use of or changes to owner’s parcel, common areas
• Covenant enforcement
• Amendments to association documents
• Board and committee meetings
• Access to official association records.

     Therefore, because Rembert failed to comply with the Act’s requirement of mediation before filing her lawsuit, the lawsuit should have been dismissed.

     This decision reinforces the significance for both Florida community associations and their owners/members to comply with mandatory arbitration and mediation pre-suit requirements, “pre” meaning before filing a lawsuit! Failure to comply requires dismissal of the lawsuit, so the defendant wins. There is no do-over in that lawsuit. The kicker is that after a dismissal, usually the defendant can collect attorneys’ fees and costs from the plaintiff! Further, the plaintiff cannot proceed with a new case until paying the costs assessed in the first case. 

Michael J. Gelfand, Esq.

Senior Partner, Gelfand & Arpe, P.A.

     Michael J. Gelfand, Esq., the senior partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar board-certified lawyer in condominium and planned development law and in real estate law, a certified circuit and county civil court mediator, a homeowners’ association mediator, an arbitrator, and parliamentarian. He is a past chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at ga@gelfandarpe.com or 561-655-6224.