Among the end of years decisions was one highlighting an association’s potential liability for the alleged wrongful conduct of the association’s manager, Ice v. The Cosmopolitan Residences on South Beach, A Condominium Association, Inc. Case No. 14-3999,42 Fla. Law L Weekly D 2604 (Fla. 3rd DCA, December 13, 2017).

Ice obtained title to a condominium unit as a result of the Condominium Association’s assessment lien foreclosure sale. His title was subject to a pending mortgage foreclosure action. Upon his being “surprised” at the lender’s 24-hour notice and writ of possession being posted on his door, Ice sought to remove some of his possessions, but was unable to secure storage for all.

From this point, what occurred apparently was greatly disputed. As this matter was an appeal from the granting of a motion to dismiss, the Court addressed Ice’s allegations which included the following:

• The Association’s property manager instructed the Deputy Sherriff removing Ice’s property to place the property in the Condominium parking garage around which the manager placed barricade tape to provide caution and deter thieves.
• The same day Ice discovered that the Association deactivated his access card preventing him from removing his property.
• The Association’s security guard told Ice that he should contact management the next day for access to remove the property.
• The Association’s property manager after the manager’s request for Ice’s couch and other items was refused by Ice, the manager stated that Ice could not access his property that the property was disposed, and if Ice returned he would be removed as a trespasser.
• “A few days later” the Association’s security guard asked if he could have the property in Ice’s storage unit.

Ice also alleged that he never received any of his property. The court dismissed Ice’s Complaint with prejudice.

The dismissal of Ice’s conversion count was reversed. The Complaint alleged the Association’s intentional control over Ice’s property with an intent to possess some or all of Ice’s property. The alleged “quid pro quo” for Ice to turnover certain items in return for access was without a legal right. The property retained in the storage unit was never abandoned and for which Ice made demands and undertook to recover.

The Association’s defense based on the Landlord Tenant Act was not applicable because the situation did not involving the rental of a dwelling unit. Further, the exculpation provisions of §83.62(2) Fla. Stat. (2012), applies to the sheriff, landlord and landlord’s agent, not including the Association or it’s manager.

As the wave of the great recessions foreclosures may have crested, numerous writs of possession continue which have led to sheriffs removing and depositing property. Most associations do not want to see any person’s property deposited on the street in front of the condominium or a home. If an association allows the property to remain within the condominium or common area, then the association likely would want to take care not to violate the (former) owner’s right to possess his or her property. In this regard, association managers should be careful not to deprive owners of their rights or be seen to inappropriately bargain.

The dismissal as to the count seeking the breach of bailee’s duty was affirmed because the Association was not alleged to have obtained “independent, temporary, exclusive possession of the property from Mr. Ice.” The intervening efforts of the Deputy Sheriff appeared to prevent this claim from reaching fruition.

What is to be learned? Plan in advance. If a writ of possession is to be enforced, then associations should consider where would be best for property to be moved, of course in conjunction with law enforcement. Association’s should likely avoid taking possession or control. Personnel likely should be instructed not to bargain for the property.

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar

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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section

© 2018 Michael J. Gelfand

Michael J. Gelfand

Florida Bar Board Certified Real Estate Attorney

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Attorneys