Tuesday, July 12, 2011

New bill clarifies that process servers must be given access in gated communities.

HB 59 sponsored by State Representative John Julien passed during this year's Legislative Session and is now law. The amendment to Section 48.031(7) of the Florida Statutes provides that a gated residential community, including a condominium, cooperative or homeowners' association, must grant unannounced entry into the community, including its common areas and common elements, to a process server attempting to serve process on a defendant or witness residing within or known to be inside the community.

Florida now joins Georgia and California as the third state to pass such a law.

What has your gated community done up until now in terms of persons attempting to serve process to those living within your walls and gates?

Did your guard call ahead or deny entry altogether? Did your concierge send an email or similarly send them on their way?

Even before this bill's passage, my advice to gated communities was not to call ahead to announce a process server's entry as that action could be construed as an obstruction of justice.

The alternative to service of process in person is service by publication but this is typically recognized as a last resort as judges tend to doubt that most defendants actually see such published notices. With the amount of foreclosures and other litigation taking place in Florida these days, it's not surprising that process servers and the clients they represent were clamoring for greater access to do their jobs.

When this bill was first proposed at the beginning of the Session last March, the bill contained language which would have allowed process servers access to limited common elements as well. That would have presented a signficant problem for some communities where limited common elements like elevators open directly into a resident's unit. Fortunately, my group the Community Advocacy Network (CAN) was given the opportunity to provide our input and we advised Rep. Julien of this issue and the language was ultimately removed.

Rep. Julien was yet another freshman legislator who passed significant legislation in his first term. Prior to serving in the Florida House, he was a North Miami Beach Council member and managed the process serving company he owns.

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