Guest post by Henderson Franklin’s Construction Chair, J. Matthew Belcastro, Esq.

5-4-2016 8-11-32 AMFreedom to contract is one of the cornerstones of our system of jurisprudence. As long as the subject of the contract is not illegal or contrary to an established public policy, we Americans can contract in just about any manner we wish.

Yet, all too often when disputes arise in connection with a construction project, we find parties who have no contract or (potentially worse) a contract which is not suitable for the nature of the project and/or the interests the parties wish to protect.

The construction industry is somewhat unique because of the wide range of potential parties and relationships involved in a project: owners/developers, general contractors, design professionals, subcontractors, materials suppliers, lenders, sureties, just to name a few. These numerous relationships make it all the more important to protect yourself with appropriate contractual provisions.

Continue Reading What You Need to Know About Construction Contracts to Protect Your Business

Denzel_Washington_2013In the 1980s, the television show The Equalizer told the story of a trouble-shooter who assisted people in over their heads, with long odds.  Denzel Washington brought the role to the big screen in 2014.  If you’re a property owner, you might need to have things equalized, too, by using a law written to assist property owners.

Think about it.  You’ve put, maybe, your life savings, or retirement money, into a piece of vacant land.  You’ve done your homework.  You’ve found out the comprehensive plan and the  zoning will allow you to open a restaurant, your own neighborhood bar and grill.  You buy the land, submit a development plan, apply for and obtain the necessary permits, and break ground on construction.  Half-way through your project, you get the news that local government has changed its comprehensive plan and re-zoned your property, mentioning it specifically in the new ordinance.  No commercial uses.  No grandfather clause.

Not good.

Continue Reading Equalizing the Odds

landscape-nature-sunset-cloudsFor those unfamiliar with the program and its history, the Lee County (the “County”) Conservation 20/20 program functions as the County’s environmental acquisition and management program that was established to protect our local drinking water, provide nature-based recreational opportunities, protect areas from flooding and provide wildlife habitat.

The Conservation 20/20 program was originally created on July 31, 1996, when the Board of County Commission (the “BOCC”) adopted Ordinance No. 96-12, which created a “Land Committee” to assist in implementing the “Lee County Conservation Land Acquisition and Stewardship Program.” Thereafter, the 20/20 program was substantially amended by Ordinance No’s 96-12, 05-17, and 13-09. Ordinance No. 15-08 was the most recent amendment, which establishes a 15 member appointed citizen’s advisory committee called the “Conservation Lands Acquisition and Stewardship Committee” (CLASAC). CLASAC is tasked with the responsibility of advising the BOCC regarding the acquisition, restoration, improvement and management of conservation lands to meet its enumerated objectives and duties.

It is important to emphasize that, following the adoption of Ordinance No. 15-08, any changes to the County’s 20/20 program must be approved by a “super-majority” vote of the entire BOCC.

Which Lands Qualify for Consideration under Conservation 20/20?

Continue Reading What You Need to Know About the Upcoming Non-Binding Referendum for Lee County’s Conservation 20/20 Program

18050124324_b43e965017_zFollowing two recent incidents, a new emergency rule has been enacted in Florida to ensure that the public, local governments and the Department of Environmental Protection (“DEP”) are notified by all responsible parties following a pollution incident.

Background

On August 28, 2016, Mosaic Fertilizer (“Mosaic”) notified DEP of suspected damage to a gypsum stack liner located at its New Wales Concentrate Plant, which ultimately created a sinkhole that released processed water into the underlying groundwater. While DEP responded to the site within 24 hours to assess potential response actions, the public did not learn of the issue until three weeks later. Also, although DEP reports indicated that no contamination had migrated off-site and therefore no public notification was required under the applicable Florida regulations, many residents remained concerned about the mere possibility of off-site contamination and the timeliness of Mosaic’s public notice.

Thereafter, on September 7, 2016, unauthorized discharges of domestic wastewater were released into Tampa Bay by facilities operated by the City of St. Petersburg, in Pinellas County. Similar to the Mosaic sinkhole, the public and environmental stakeholders expressed concerns about the accuracy and timeliness of information provided to the public by City officials.

Governor Order’s New Emergency Rule

Continue Reading Florida Enacts New Emergency Rule in Response to Mosaic Sinkhole and Pinellas County Sewage Spills

Lease.jpg“An ounce of prevention is worth a pound of cure.” “Penny-wise, pound foolish.” “A stitch in time saves nine.” Few would doubt the universal application of these time-honored pearls of wisdom. Yet when it comes to legal documents, common sense goes by the wayside.

Contract? What Contract?

As a litigation attorney, there have been instances too numerous to count where a potential client calls me about a legal problem. When I ask to review the contract or document at issue, I’m usually met with a response that there is no document or, if there is one, it was not drafted by an attorney. The client then spends thousands of dollars in legal fees correcting a problem that should have been avoided in the first place.

Continue Reading Commercial Leasing Best Practices

hurricane-92968_1280On October 3, 2016, in response to a five-day forecast from the National Hurricane Center for Hurricane Matthew, a major storm which is expected to impact large portions of the east coast, the Governor issued Executive Order Number 16-230 declaring a 60 day State of Emergency throughout every Florida county.

Legal Authority for State of Emergency Permit Extensions

As I have explained in recent blog posts, Section 252.363, Florida Statutes, provides that certain qualifying permitees are entitled to extensions following a declared State of Emergency for the amount of time the declaration was in effect, plus an additional six (6) months. In order to obtain such an extension under this statute, permitees are required to submit a written notification to the appropriate authorizing agency (i.e., City, County, Florida Department of Environmental Protection (FDEP), or Water Management District) within 90 days after the State of Emergency has expired.

Development Permits Eligible for State of Emergency Permit Extensions

Continue Reading Development Approvals in All Florida Counties Eligible for Extensions under State of Emergency Declared for Hurricane Matthew

iStock_000015122897XSmall.jpgAs a community association manager, I bet you often find yourself plagued by questions from Board members regarding what they need to do, what they are allowed to do, and what they can’t do.

As a good CAM, I bet you knock down many of the questions as soon as they pop up, but still there are those few that touch on legally uncertain areas which you might struggle to answer.

The Condo and HOA Law Team at Henderson Franklin is here to help.

On October 11, 2016, we will be hosting a free legal update seminar to tell you what you need to know about:

  • Electronic voting;
  • Service Member Rental Approvals;
  • Gate Security;
  • Screening with Criminal Background Checks;
  • Vacation Rentals;
  • Remedies for Owner Violations;
  • Bankruptcy issue; and,
  • Fire sprinkler Retrofit Issues.

We will be hosting the seminar at George and Wendy’s Sanibel Seafood Grille starting at 11:30am, and lunch will be provided. Click here to download the seminar flyer.

As seating is limited, be sure to register here so you don’t miss out on the opportunity to learn about these hot button issues.

We hope to see you there!

Under Section 252.363, Florida Statutes, qualifying permitees are entitled to extensions following a declared State of Emergency for the amount of time the declaration was in effect, plus an additional six (6) months.

In order to obtain such an extension under this statute, permitees are required to submit a written notification to the appropriate authorizing agency (i.e., City, County, Florida Department of Environmental Protection (FDEP), or Water Management District) within 90 days after the State of Emergency has expired.

Types of Permits that Qualify

Continue Reading New Executive Orders Provide Further Statutory Extension Opportunities for Florida Development Approvals

Foreclosure Nick Bastian FlickrOn August 24, 2016, the Fourth District Court of Appeal issued an opinion in Ober v. Town of Lauderdale-by-the-Sea, No. 4D14-4597, 2016 WL 4468134 (Fla. 4th DCA August 24, 2016) that is likely to have broad implications on Florida’s foreclosure process and negatively impact investor interests in distressed real estate. Moving forward, from a land use perspective, the case should also serve as a cautionary tale and reminder about the importance of a prospective buyer’s due diligence.

Background

The genesis of the case began on November 26, 2007, when a lis pendens was recorded on a property as part of a foreclosure proceeding against a homeowner. Thereafter, a bank obtained a final judgment of foreclosure on the property in September of 2008. Several years following the final judgment, a real estate investor, Ober, purchased the property on September 27, 2012 at a judicial sale.

The crux of the case revolved around seven (7) separate code enforcement liens that had been recorded on the property by the Town between the dates of July 13, 2009 and October 27, 2011, all stemming from violations that occurred after the final judgment was entered. Finally, in 2013 the Town began to impose three more liens on the property in relation to the earlier violations.

In an attempt to strike the liens against his property, Ober filed an action to quiet title in civil court. In response, the Town filed counterclaims to foreclose the ten (10) liens, which were later approved by the trial court in its final judgment that was entered against Ober.

According to the Ober Court, Florida’s Lis Pendens Statute Does Not Apply to Liens Recorded Between Final Judgment and the Judicial Sale

Continue Reading New Florida Foreclosure Case May Lead to Less Participation and Greater Risk for Real Estate Investors

We all understand the value of preparing for hurricane season, but what about tourist season?

In the last post, we talked about the need for a license if you intend to rent your property out on short term intervals.

Now that you know whether you need a license to rent out your second home or condo, have you considered the benefits of using a written rental agreement?

Sure, it’s convenient and friendly to allow a stranger on VRBO to rent your property and only require that he or she pay a modest security deposit up front. In a perfect world, the renter would pay rent, not damage the property, follow all of the rules, and this arrangement would work out wonderfully every time.

Benefits of a Written Rental Agreement

Continue Reading Vacation Rentals: Are You Prepared?