Kottler v Kay’s Landing Homeowners’ Ass’n Inc., et al., Case No. 2020-CA-00831-11K-G (Seminole County, Florida) (August 1, 2025)
Chris Hill of Hill Rugh Keller & Main obtained a directed verdict in favor of a defendant homeowner sued by a neighbor in their gated community, after the plaintiff allegedly tripped on a raised sidewalk in front of the defendant homeowner’s house. The plaintiff argued the defendant homeowner owed a duty to “repair damage” to the sidewalk under the covenants, and the defendant homeowner was therefore liable to the plaintiff neighbor for injuries she claimed resulting from falling on the section of the sidewalk raised by the tree root. Hill argued for the defendant that the clause was unconscionable and unenforceable because it was inconspicuously nestled within numerous contrary clauses imposing the duty to maintain the sidewalk on the HOA. Hill also argued that members of the HOA board knew the maintenance clause existed, but had failed to enforce it for many years, therefore waiving enforcement of the provision.
Seminole County Judge Donna Goerner agreed that the maintenance clause in the covenants was unconscionable, and granted the directed verdict in favor of the defendant homeowner. Judge Doerner also agreed the HOA had waived the right to enforce the clause because the HOA had previously conducted all sidewalk repairs and had not enforced the clause against any homeowner.
The court also agreed that under Scott v. McCarty, 41 So.3d 989 and Baiser v. Ryan, 263 So.3d 189 (Fla. 1st DCA 2018), a homeowner is not liable for roots of a tree which grow onto another person’s property.
A transcript of the argument is linked below.
View Transcript