The Duty To Repair Vs. The Duty To Warn: Lessons From Florida Sidewalk Cases

At Perez Mayoral, P.A., we represent homeowners only—never associations. Too often, when residents are injured on condominium property, associations respond by saying the danger was “obvious” and they had no duty to do more. But Florida courts have made clear that even when a hazard is obvious, associations still have a duty to repair unsafe conditions. If you or someone you care about was injured because of an association’s negligence, our Orlando, FL HOA lawyer is available to see how we can help.

Two Florida cases—Lotto v. Point East Two Condominium Corp. and Middleton v. Don Asher & Assocs.—help explain this important difference.

The Lotto Case: An “Obvious” Hazard Isn’t Enough

In Lotto v. Point East Two Condominium Corp., 702 So. 2d 1361 (Fla. 3d DCA 1997), a resident tripped on a large, uneven sidewalk crack. The association admitted the crack had been there for years, but argued it had no duty to warn the resident because the condition was open and obvious.

The trial court initially sided with the association. But on appeal, the court reversed. The judges explained that while the association may not have had to warn about the sidewalk crack since it was visible, it still had a continuing duty to repair. The key point: even obvious hazards must be fixed if they pose a risk of harm.

The court also noted that the resident’s familiarity with the crack didn’t completely bar recovery—it only raised an issue of comparative negligence (how much fault should be shared).

The Middleton Case: The Duty To Maintain Safe Property

More recently, in Middleton v. Don Asher & Assocs., 262 So. 3d 870 (Fla. 5th DCA 2019), another Florida appellate court reinforced the principle that associations have a duty to maintain property in a reasonably safe condition.

In that case, a unit owner was injured after tripping on an uneven sidewalk. The court found that even though the condition may have been open and obvious, the association could still be liable for failing to maintain the property properly.

The decision emphasized that landowners—and by extension, condominium associations—can’t escape responsibility by pointing to the visibility of a hazard. If the condition is one that a reasonable association should have fixed, liability may follow.

The Difference: Warning Vs. Repair

So what’s the difference between a duty to warn and a duty to repair?

• Duty To Warn: Associations don’t always have to post warnings about conditions that are obvious to a reasonable person.
• Duty To Repair: Associations always have a duty to keep common areas safe. Even if the danger is visible, they can’t ignore it.

In practice, this means that your association can’t avoid responsibility by claiming, “Well, you should have seen the crack in the sidewalk.” If the condition was unsafe and they knew about it (or should have), they had a duty to fix it.

Why This Matters For Homeowners

If you’ve been injured on your condominium’s property:

1. Document the condition – Take photos of the hazard, especially if it has existed for a long time.
2. Gather evidence of notice – Was the association aware of the hazard? Did other residents complain?
3. Seek medical care – Your injuries and treatment need to be recorded.
4. Consult an attorney – A negligent maintenance claim can allow you to recover for medical expenses, pain and suffering, and other damages.

The Bottom Line

Florida courts have drawn a clear line: associations may not have to warn residents about every visible hazard, but they do have to repair unsafe conditions. When they fail, they can be held responsible for the injuries that result.

At Perez Mayoral, P.A., we stand with homeowners—not associations. If you’ve been hurt because your association neglected to maintain common property, we can help you understand your rights and pursue compensation. Contact us today to schedule a consultation.