RE Q&A: If Common-Area Tree Falls, Who Pays?

A condo owner’s pool cage suffered damaged after a tree in the common area fell during Hurricane Ian. Who pays for repairs? The owner or the association?

NAPLES, Fla. – Question: When Hurricane Ian went through my community, several oak trees in the association’s common areas fell. Unfortunately, one of those oak trees fell on my pool cage and destroyed it.

I have asked the association to reimburse me for the amounts that I spent to have my pool cage fixed. However, the association has refused saying that they don’t have to reimburse me. Is this right? – L.T., Naples

Answer: The association may be right. When it comes to tree damage from a neighboring property, the question is whether the property owner failed to maintain the tree prior to the storm, thereby causing the tree to fall and damage someone else’s property.

If the tree owner failed to maintain the tree and it subsequently caused damage to someone else’s property, then the tree owner could be deemed negligent. If deemed negligent, then the tree owner is liable for damages caused by the fallen tree. In your situation, it will be important to determine if the tree was healthy prior to the hurricane. If the tree was healthy and Hurricane Ian caused the tree to fall, then the association was likely not negligent and would not be liable for the damage caused by the fallen tree.

Question: My homeowners’ association just posted a notice that the Board meeting to approve the 2023 budget will be held at our clubhouse in five days. I thought the homeowners’ association was required to post and mail the notice of budget board meetings and the proposed budget to all owners at least 14 days prior to the Board meeting. Is what they did correct? – E.S., Hollywood, FL

Answer: What the homeowners’ association did could be correct depending on whether there are other provisions in your community’s governing documents on additional requirements of the association when it comes to the budget Board meeting.

Chapter 720, F.S., the HOA Act, does not require mailing and posting of the budget Board meeting notice and the proposed budget at least 14 days prior to the Board meeting. In fact, the only requirement is that the notice of the Board meeting be posted in a conspicuous place within the association at least 48 hours prior to the Board meeting, and the meeting notice must state that assessments will be considered at the meeting.

Additionally, after the budget is approved, the association is required to provide each owner with a copy of the annual budget or a written notice that a copy of the budget is available upon request at no charge to the owner.

The time period and process of mailing and posting that you’ve stated in your question is required of Florida condominium associations. Many homeowners’ associations have also voluntarily begun to comply with this process.

However, unless an association’s governing documents explicitly require it to comply with the longer notice requirement and the requirement to mail the notice and proposed budget, a homeowner’s association is only required to post a notice at a conspicuous place within the association at least 48 hours prior to the budget Board meeting.

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Copyright © 2022, Sarasota Herald-Tribune, all rights reserved. S. Kyla Thomson, Esq., is a partner of the law firm Goede, DeBoest & Cross.