Last year, I wrote an article warning homeowners’ associations (“HOAs”) that the enforceability of their covenants and restrictions (“Covenants”) may be affected by the Marketable Record Title Act (“MRTA”). In simple terms, MRTA can eliminate the effectiveness of recorded Covenants if they haven’t been preserved within 30 years from when the covenants and restrictions were recorded.

New Law Offers Relief to Some HOAs

In my prior article, I stated that merely amending or restating the covenants does not restart the 30-year clock, but that a statutory process must be followed.

The good news is that in 2018, the Florida legislature amended MRTA by the passage of House Bill 617, to provide that certain amendments will preserve the Covenants if they are recorded before the time the Covenants would have expired. The bad news is that the new law is not effective until October 1, 2018, and, further, the new law will not save any HOAs from having to go through the statutory revitalization process if their Covenants have already expired under the current law prior to October 1, 2018.

Simplified Procedures

Continue Reading It’s Now Easier to Preserve HOA Restrictions… for Some

Florida law currently caps taxes assessed on commercial and rental property, but that may end come January 1, 2019.

You might be thinking “why do I care because I rent my home or apartment and don’t own either commercial or rental property?” Consider this: if your landlord has to pay higher taxes, guess whose rent is going to increase to offset your landlord’s cost?

For more information, please see a recent article in the Business Observer by Kevin McQuaid, “Commercial landlords could face big tax hike.”

Summer is a busy season for moving in Florida. This time of year is a popular time for families to move because it follows the spring real estate season and because school is out, parents won’t have to deal with enrolling their children in a new school mid-year. Landlords should ensure that they are aware of and in compliance with Florida law prior to renting.

Before signing a rental agreement or lease, landlords are encouraged to seek legal counsel to ensure that their lease complies with Florida law and that they are aware of the laws governing the landlord tenant relationship.

Landlord’s Responsibilities

In Florida, landlords are responsible for maintaining the dwelling. At all times during tenancy, the landlord shall (1) comply with the requirements of applicable building, housing, and health codes; (2) maintain the roofs; (3) doors; (4) floors; (5) steps; (6) porches; (7) exterior walls; (8) foundations; (9) and all other structural components in good repair. The landlord must also maintain the plumbing in reasonable working condition.

Continue Reading Florida Rentals: What is the Landlord’s Responsibility?

Unlike certain “unalienable rights” granted to citizens under the United States Constitution, property interests are traditionally understood to have been created by a number of independent sources such as statutes, ordinances, or contracts. The general concept of property itself is construed as the group of rights inhering in the citizen’s relation to the physical thing, such as the right to possess, use and dispose of it.

Modern courts, however, acknowledge that the traditional notion of property interests encompass a variety of other valuable interests, such as intangible and incorporeal rights (e.g., leases, easements, right-of-ways, and mortgages) or other uses which extend well beyond the historic norms of property to establish an entirely legitimate claim to certain additional land use entitlements as well.

What is an “Exaction”?

The term “exaction” is when a condition for development is imposed on a parcel of land which requires the developer to mitigate anticipated negative impacts of the development. An exaction may include some sort of mandatory dedication of real property for impact fee payments, sewer or water utility connection fees, or public use of land for a park, school, or transportation facility or expansion anticipated for certain related infrastructure improvements.

The Doctrine of “Unconstitutional Conditions”

Continue Reading What Are My Private Property Rights in Florida Against Unlawful Land Development Exactions?

In something of a rarity, an appellate court has written an opinion in favor of a property owner bringing a claim under The Bert J. Harris, Jr., Private Property Rights Protection Act.

In Ocean Concrete, Inc. v. Indian River County, Board of County Commissioners, the Fourth District Court of Appeal reversed a trial court order denying relief to a property owner under the Bert Harris Act. As the Fourth District explained, in order to obtain relief under the Bert Harris Act, a plaintiff has to show

a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property.”

Bert Harris Act in a Nutshell

Continue Reading Appellate Court Rules in Favor of Florida Property Owner Under Bert Harris Act

In most cases, agreements between landlord and tenant are memorialized in writing that provides a specific procedure for both landlord and tenant default. However, not everyone hires an attorney to draft a lease. So what happens when the tenant stops paying the landlord and there is no written lease? The following is a summary of the process for evicting a commercial tenant and recovering money damages for past due rent.

No Written Lease = Tenancy at Will

In Florida, an unwritten lease is considered a tenancy at will. If rent is paid monthly, then the tenancy at will is regarded as a monthly lease. Either party can terminate a monthly tenancy at will by giving 15 days’ notice before the end of any monthly period.

Continue Reading My Commercial Tenant Quit Paying Rent, Now What?

Last year, the Florida Supreme Court issued an important opinion on property rights that you need to know about if you own real estate in Florida. I had written a blog post right after the decision, but a case I was handling at the time involved some issues related to the post, so I delayed the post until after my case resolved. In any event, the Florida Supreme Court opinion updates my blog posts of July 8, 2015 and August 20, 2015 about the Bert J. Harris, Jr., Private Property Rights Protection Act topic.

Land Use Designations in Hardee County

As mentioned in my earlier post, this case originates from a land purchase in Hardee County in 1996. The purchaser, FINR, bought land that held an “agriculture and public institutional purpose” future land use designation. In 2007, FINR successfully applied to amend the Hardee County Comprehensive Plan and change FINR’s future land use designation to rural center. The “rural center” designation provided FINR with a quarter-mile setback that applied to the adjacent properties and prohibited phosphate mining activities in the setback.

Continue Reading Not Your Property? Then You’ve Got No Claim Under the Bert Harris Act

Due to the growing use by local governments of certain quasi-judicial code enforcement proceedings to obtain compliance with their local land use and zoning regulations, it is important for Florida property owners and business operators to have a thorough understanding of administrative enforcement proceedings.

Local Government Enforcement Authority

Florida’s statutory scheme governing local code enforcement procedures is divided into two separate parts under Chapter 162 of Florida Statutes. There is no statutory provision prohibiting local governments from enforcing their land use development and zoning regulations by other means. Section 162.13 provides that the provisions of Chapter 162 are supplemental procedures for local governments to achieve code compliance and are therefore intended “to provide an additional or supplemental means of obtaining compliance with local [government] codes.”

Penalties and Fines

Continue Reading How Can Local Governments in Florida Enforce Compliance With Their Land Use & Zoning Regulations?

Florida’s State Constitution & Amendments Proposed by the Constitutional Revision Commission (“CRC”)

Once every twenty years the Florida Constitution provides for the creation of a thirty-seven member revision commission (hereinafter referred to as the “CRC”) which is appointed for the specific purpose of reviewing the Florida Constitution and proposing changes to be considered for voter consideration.

As such, the CRC has been uniquely vested with the duty to examine the Constitution of the State of Florida, as revised in 1968 and subsequently amended, hold public hearings, and file with the Secretary of State its proposed changes, if any.

Florida Constitution Article XI, Section 2

Continue Reading What All Florida Voters Need to Know About the 2017-2018 Constitutional Revision Commission

Victorville West Limited Partnership (“Victorville”) purchased the Inverrary Golf Course and Clubhouse within the Inverrary community in Lauderhill, Florida, in 2006. Victorville acquired the property subject to a restrictive covenant that became the subject of a lawsuit that the Fourth DCA recently ruled could not be canceled because it remained a substantial benefit to the surrounding homeowners.

Restrictive Covenants

When a person or entity purchases property, the property may be subject to a restrictive covenant that limits the purchaser’s use. The most common example is the restrictions provided by the declaration of covenants, restrictions, and easements that a homeowner’s association enforces within a residential neighborhood.

Continue Reading Appeals Court Hands Down a Win for Florida HOA