On April 2, 2020, Governor DeSantis signed Executive Order 20-94, which placed a moratorium on residential eviction actions related to the non-payment of rent. The purpose of the moratorium was to provide targeted, temporary relief to Floridians in the wake of the COVID-19 pandemic. However, after granting several extensions, Governor DeSantis permitted Florida’s moratorium to expire at midnight on September 30, 2020.

While the expiration on Florida’s moratorium may come as a relief to landlords and a further concern to tenants, there remains a federal moratorium imposed by the Centers for Disease Control and Prevention (“CDC”) that continues to impact Florida rental properties.

Who’s covered under the CDC Moratorium?

Continue Reading How the CDC’s Moratorium Could Impact Florida Landlords’ Right to Evict Despite the Expiration of the Florida Moratorium

Construction warranties seem simple enough but often result in a great deal of confusion, particularly when it comes to understanding the amount of time a project owner has to file a lawsuit alleging the breach of such warranties.

The complication arises because an owner’s right to sue for breach of a warranty does not expire on the date the warranty expires.

A Common But Confusing Scenario

Assume a situation in which a contractor has completed construction of a residence on January 1, 2015. The contractor has been fully paid for the work and the owner appears happy with the work. Further assume that the construction contract included a standard two-year warranty on labor and materials.

Now fast forward five years to the year 2020 and the contractor is served with a lawsuit from the same owner who is alleging breach of construction warranties. How can this be? The warranties expired in 2017, right? It would appear that this should be a simple case for the contractor to defend and win. Unfortunately, it is not so simple.

A common misunderstanding in the construction industry lies in the distinction between the concept of a warranty period and the statute of limitations for filing a lawsuit.

Four-Year Statute of Limitations

Continue Reading The Construction Warranty: It Ain’t Over ‘Til It’s Over! When Is It Over?

I regularly preach that a condemning authority must make sure the legal description in the resolution must match the legal description appraised by the appraiser, and must match the legal description in the petition in eminent domain. Pretty straight-forward.

A decision from this summer points out that the legal description must be clear, also.

In the Altman v Brevard County decision, the County used an easement description having two possible boundaries for one side of the easement. The Fifth District Court of Appeal found that the conflicting easement boundaries in the legal description rendered the County’s petition in eminent “fatally defective” and reversed the trial court’s order of taking.

Continue Reading Legal Descriptions for a Condemnation: They Gotta Match — But They Need to be Clear, Too!

To update my earlier post of August 12 (Important Update Regarding Florida’s Moratorium on Evictions and Foreclosures), on the evening of August 31, 2020, Governor DeSantis issued Executive Order 20-211, which extended the relief provided in Executive Order 20-180 through 12:01 a.m. on October 1, 2020.

Other than extending the moratorium for 30 days, all other terms of Executive Order 20-180 remain unchanged. Executive Order 20-211 can be viewed here.

On April 2, 2020, Governor DeSantis signed Executive Order 20-94, which placed a moratorium on mortgage foreclosure actions, as well as residential eviction actions related to the non-payment of rent. The purpose of the moratorium was to provide targeted, temporary relief to Floridians in the wake of the COVID-19 pandemic. Since Executive Order 20-94 was enacted, three additional orders were signed by Governor DeSantis in order to extend the stay.

Most recently, on July 29, 2020, Governor DeSantis signed Executive Order 20-180, which extended the foreclosure and eviction moratorium through September 1, 2020. However, the new order made substantial changes to limit the types of cases that are covered by the moratorium.

Changes to the stay on mortgage foreclosures

Previously, all mortgage foreclosure cases were suspended, regardless of the reason the foreclosure action was filed. In contrast, under the new order, the foreclosure stay only extends to “single-family mortgagors adversely affected by the COVID-19 emergency”, and only for cases where the default is directly tied to non-payment.

Continue Reading Important Update Regarding Florida’s Moratorium on Evictions and Foreclosures

As of July 1, 2020, Florida law no longer requires leases for a term of more than a year, residential or commercial, to be signed in the presence of two witnesses. In fact, witnesses are no longer required on any real property leases. See,  http://laws.flrules.org/2020/102

While the legislative bill that led to the new law was filed before the COVID-19 pandemic became a reality in Florida, many professionals within the industry have a newfound appreciation for only needing one person in a room, not three, to get a deal done.

If you should have any questions on leasing in Florida, please feel free to contact me at michael.lehnert@henlaw.com or by phone at 239-344-1184.

During the COVID-19 pandemic, most of us have been forced to incorporate greater use of technology to conduct our business. For many associations, some tasks have been done for the first time using electronic technologies, such as video meetings under the exceptions permitted by the board’s emergency powers.

Conducting business by electronic means can increase efficiency and save paper, money, and storage space. Now that we are all getting used to conducting more business solely by solely electronic means, boards and managers may be wondering what they can do under the law to continue to use technology to operate their associations under “normal” circumstances. Here are some reminders of what is permitted under the Florida Statutes.

Meeting Notices

E-mail can be used to provide meeting notices only for owners who have consented in writing to accept notices by electronic means and who have provided an email address for that purpose. Meeting notices must also still be posted in a conspicuous place on the property if otherwise required. In addition to mailing, hand delivering or e-mailing notices, an association may adopt a procedure for conspicuously posting and repeatedly broadcasting the notice and agenda on a closed-circuit cable television system serving the association. If used, the broadcast notice and agenda must be broadcast in a manner and sufficient length of time so as to allow an average reader to observe, read and comprehend the entire content.

Websites

Continue Reading Incorporating Electronic Technology Into Association Operations

(As published in the “Roundtable” in the July 2020 Issue of Suite Life Magazine)

While residential tenancies have many terms and protections set out in the Florida statutes that cannot be waived, the same cannot be said about commercial tenancies. As a result, the general rule of thumb is that if a condition or situation is not addressed by your commercial lease, the Florida statutes will be of no use.

Thus, commercial property owners and landlords should always strive to use the most comprehensive lease agreement with their tenants. Below are some of the most common “absent provisions” that have come back to bite a commercial landlord.

Tenant Improvements

Your lease should be specific about which party has the authority to approve all plans and hire the contractors. The lease should also contain very specific information about the payment of any tenant improvement allowance (lump sum versus payment in the form of rent abatement) and the timing of such payment.

Casualty Loss

In the event of a casualty (fire, storm, etc.), the lease should state who is entitled to the insurance proceeds. There should be deadlines within which the landlord or tenant are required to make repairs, and there should always be a provision that addresses whether a lease may be terminated in the event of a casualty that renders the property unusable.

Non-Monetary Default

Continue Reading Commercial Leasing: The Devil is in the Details

Guest post by Nick J. Oliveri, Summer Law Clerk

In late June, Governor DeSantis approved Florida’s version of the Uniform Commercial Real Estate Receivership Act (“UCRERA”) and the Act became effective July 1, 2020. This law begins its life in a time of great uncertainty for the Florida business community as the Sunshine State’s recently-relaxed business restrictions underwent a near full reversal as COVID-19 cases spiked around the state. This retightening of COVID-19 business restrictions and the uncertainty associated with it will likely mean Florida businesses may continue to struggle. This is where UCRERA comes in.

UCRERA codifies Florida common law around receivership and even expanded it in some cases. Those involved in Florida’s commercial real estate industry, whether on the lending or the borrowing side, would do well to take note of these changes as an increase in foreclosures is predicted as a result of COVID-19’s negative impact on Florida’s businesses.

What do Florida lenders need to look out for?

If you are a commercial lender, this law is definitely in your favor due to the expansive powers it gives receivers to help pay back the commercial lenders who appoint them. Lenders should focus on three things:

  • the mandatory receivership duties under UCRERA;
  • what actions receivers are allowed to do “in the ordinary course of business” and outside of it; and,
  • what actions they need court approval for.

The latter two things often go hand in hand as you will see below.

Impact on Borrowers

Although this sounds bad for borrowers, borrowers should be on the lookout for language like “with court approval” because that means a borrower will likely have the chance to contest whatever the receiver is trying to do.

Continue Reading Understanding Florida’s Commercial Property Receivership Act and its Impact on Lenders and Borrowers Amidst COVID-19

Most of us in the construction industry are familiar with contractual provisions which require one of the parties to obtain insurance on the project (frequently called “builder’s risk” policies). These provisions are typically accompanied by “waiver of subrogation” provisions. Usually, if everything goes well on a construction project, these provisions don’t ever come up for discussion. However, in the event there is an accident during the course of construction, these provisions can be critical for purposes of allocating risks and potentially protecting a contractor or its subcontractors from liability.

How do these provisions work?

Typically, a construction contract will require the owner (or the contractor) to obtain property insurance to protect the project during the course of construction. For example, the standard AIA General Conditions require the owner to “purchase and maintain property insurance upon the entire work at the site to the full insurable value thereof.” This insurance is to include the interests of the owner, the contractor and all subcontractors. In short, the insurance is intended to protect the project against all “perils” and is generally intended to provide protection for everyone involved in the work.

A “Waiver of Subrogation” provision is typically designed to prevent an insurance company from asserting claims against the party who may have been responsible for causing damage to the property. Thus, if the project is damaged during construction and the insurance company is forced to pay for the damage, the insurance company is prohibited from asserting claims against the contractor or its subcontractors or others who may have been responsible for the damage.

Florida Law

Continue Reading Construction Contracts: Property Insurance and Waiver of Subrogation Provisions