Perhaps it was the trial court analogizing the owners’ personal trainer to be like “a call girl sitting at a clubhouse bar” that peaked the appellate court’s attention, but if so, Wednesday the Fourth District Court of Appeals built upon that phrase to provide a valuable primer for classifying those who enter private property, to address regulation of personal service providers using common area, and to provide a reprise for the threshold for rulemaking in Charterhouse Assoc, Ltd., Inc. v. Valencia Reserve HOA, Inc., Case No. 4D17-2640 (Fla. 4th DCA November 28, 2018).

The Facts.

Property owner Charterhouse authorized the Browns to reside in Charterhouse’s property, and to exercise Charterhouse’s ownership rights within the Valencia Reserve association. The Homeowners Association’s property includes a fitness center which a “Declaration” (presumably a declaration of covenants) states is for the:

private use and enjoyment of the declarant, the Association, and the owners, and their family members, guests, invitees and tenants, but only in accordance with this Declaration.

(Emphasis added.) The Declaration also provides owners a non-exclusive easement in Association property.

The Association asserting it was acting pursuant to the Declaration’s authority to “provide owners with service [and] amenities” contracted with a third party to be the “exclusive provider of fitness services in the Association’s fitness center.” As a result of the contract, the Association enacted a rule prohibiting private trainers, instructors, physical therapists and massage therapists from working in the fitness center.

Relying upon the new rule, the Association prohibited the Browns from working with their personal trainer in the Association’s fitness center.

The Trial Court.

Charterhouse and the Browns filed an action against the Association seeking declaratory relief, injunctive relief and damages. The trial court granted the Association a partial summary judgment based on the rule.

What is an Invitee?

The appellate court seized upon the Declaration’s easement in favor of owners and “invitees.” The analysis began with a survey of the common law classifying those entering private property because there has been a shift in how the courts have defined an invitee, differentiating a licensee and a trespasser.

The “Economic Benefit Test” was originally utilized to define a person who provided a mutual economic benefit to the inviter and the invitee.

The shift was to the “invitation test” where the occupier of property allows the entrant to be used by visitors, either expressly or by reasonably implied invitation.

[T]he invitation test bases “invitation” on the fact that the occupier by his arrangement of the premises or other conduct has led the entrant to believe that the premises were intended to be used by visitors for the purpose which this entrant was pursuing, and that such use was not only acquiesced in by the owner or possessor, but that it was in accordance with the intention and design with which the way or place was adopted or prepared.

(Citations deleted.)

Applying this updated “invitation test,” the appellate court held that the Declaration specifically authorized invitees to use the fitness center. When an HOA property owner invites someone to the fitness center for companionship or personalized guidance, that property is used for a recreational purpose. Here the trainer was not seeking business from other residents nor was at the fitness center without the Browns. Thus the “economic benefit test” utilized by the trial court was improper.

Rule Making.

With that foundation, the appellate court examined the Association’s rule making process. Pulling out the well-worn favorite language of Beachwood Villas Cd’m. v. Poor, 448 So. 2d 1143 (Fla. 4th DCA 1984), the court held that the rule excluding a personal trainer who was an invitee contravened an express provision of the Declaration contrary to Beachwood, at 1145; thus, the Association did not have authority to adopt the rule. The Association’s intent could not save the rule.

Conclusion.

As survey, this decision is a valuable primer, assisting practitioners counseling association clients as to the limits of their authority to address invitees. In a different context, premises liability, the decision may have the unanticipated, but likely positive, consequence of clarifying the differentiation between a licensee, invitee and trespasser. Note of course, that the decision does not address the status of the holder of a written license or that other variation, an easement holder.

The decision will assist the practitioner when addressing an association which relies on its good faith regulatory efforts. The court summarily rejected intent as a factor when determining rule making authority.

Have a great weekend!

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

Condominium & Planned Development Law

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Attorneys

The only thing necessary for the triumph of evil is for good men to do nothing.

- Edmund Burke