Hurricane Season AheadEach year, the months of June to November keep property owners across the State of Florida a bit on edge when storms begin brewing out in the Gulf and the Atlantic. This past weekend tropical depression Claudette kicked off the 2021 hurricane season, signaling to property owners across the state that it is time to begin making the necessary preparations in advance of potential storms. In addition to stocking up on batteries, plywood, and water, property owners should be aware of potential legal consequences resulting from a hurricane or tropical storm.

Damage to land

The first and perhaps most readily apparent of these consequences is when a hurricane causes a sudden change to the shoreline otherwise known as avulsion. The United States Supreme Court defined avulsion as:

the sudden or perceptible loss of or addition to the land by the action of the water or a sudden change in the bed of a lake or the course of a stream.”

Hurricanes are considered avulsive events under Florida law, which – unlike other erosion events (such as accretion or reliction which are more gradual) – preserves the property boundary at the mean high water mark existing prior to the storm. In the aftermath of a hurricane which causes a sudden loss of the shoreline, that boundary remains the same, entitling the State to reclaim or back fill that portion of the beach to ensure that the public right of access is not cut off.

Beachfront owners should be cognizant of the location of the mean high water mark or any coastal construction control line. After a storm passes, this will allow beachfront owners to better understand how the storm impacted their property boundary, and whether the State has any rights to backfill a portion of the beach that was lost.

Purchasing property in hurricane season


Continue Reading Preparing for a Storm: Legal Considerations for Property Owners during Hurricane Season

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

(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

It’s no secret that the COVID-19 epidemic is affecting virtually every sector in some way, shape, or form. The real estate sector is no exception. Although the modern real estate world has slowly moved away from face-to-face deals, there are still aspects of real estate that require some type of face-to-face contact.

How do we keep moving forward while remaining safe and healthy?

With most banks, law firms, and offices closing up to the general public, you may be wondering how to fulfill the time constraints of your contract and how a deal can be closed. In our downtown Fort Myers office, we have set-up a drive-thru conference room for signings.

Discuss the best options and next steps with your real estate attorney. Depending on the contents of your contract and individual situation, a contract extension may be the best option. However, it may also be feasible to continue to closing using the proper resources.

Force majeure clauses


Continue Reading COVID-19 Impact on Real Estate Contracts and Closings

Oil, gas, and mineral (“OGM”) rights are not uncommon, especially in Collier County and certain areas of Lee County. Unfortunately, outdated OGM leases and rights reservations can often cause a headache for buyers when these issues show up on title. Below are some tips for combating OGM rights issues on your property.

Before the contract is signed

Sometimes, if a seller knows there may be OGM rights on the property, there will be provisions in the contract to account for those rights. Be wary of provisions that limit seller’s obligation to cure issues related to OGM rights. For example, some contracts may provide that seller has an obligation to cure a title defect related to OGM rights only if there is a right of entry. Even if there is no right of entry, an OGM right may still create a cloud on title that would make buyers uncomfortable.

If you cannot reach an agreement for seller to cure the OGM issues, make sure to have a long due diligence period and try to tackle OGM issues early. OGM issues are complex, and removing them from title can be cumbersome.

After the contract is signed


Continue Reading Options for Commercial Property Owners When Handling Oil, Gas & Mineral Rights

Under Florida law, a landlord has a statutory right to demand double rent from a tenant when the tenant refuses or fails to give up possession of leased premises at the end of the lease term. § 83.06(1), Florida Statutes. When a tenant holds over past the expiration of the lease, then the tenancy becomes a tenancy at sufferance and the tenant is considered a holdover tenant. However, a landlord is not automatically entitled to double rent from a holdover tenant until the landlord demands double rent from the tenant, even if the lease provides for it. If landlord does not demand upon tenant, then the tenant is only required to continue paying the original rental rate.

Failure to Vacate

These rules were illustrated in Lincoln Oldsmobile, Inc. v. Branch, 574 So.2d 1111 (Fla. 2d DCA 1990) (“Lincoln”). In Lincoln, the tenant, Bob Lincoln, Inc., failed to vacate property owned by landlord, William Branch and Roger Dean (collectively, “Branch”), after Branch refused to grant Lincoln a short lease extension to allow for construction of Lincoln’s new facility.


Continue Reading How/When Can I Get Double Rent From My Commercial Tenant?

More often than not, a commercial landlord will ask for a personal guaranty from a prospective tenant when negotiating a lease. A personal guaranty gives the landlord the ability to seek from the guarantor any unpaid rent in addition to the business entity that is renting the space. Many times, the guarantor is the owner of the commercial entity seeking to lease the commercial space and is providing a personal guaranty in his/her individual capacity.

Extensions and Renewals


Continue Reading When Should I Ask for a Personal Guaranty for a Commercial Lease?

Commercial space is rarely “walk-in ready” for the tenant. As a result, landlords and tenants must negotiate for leasehold improvements in order for the leasing transaction to move forward. This can impact new leases, amendments or renewals of existing leases.

Below are some tips when negotiating and drafting the work letter for leasehold improvement responsibilities, originally published in the January 2019 issue of SuiteLife Magazine:
Continue Reading Six Tips for Negotiating Leasehold Improvements

Florida’s Third District Court of Appeal handed down a win for local governments on Wednesday when the Court reversed a previous Circuit Court injunction that barred the City of Miami from enforcing a ban on short-term rentals in residential areas of the City.

Background

In 2017, the City of Miami adopted a resolution that affirmed the City’s zoning regulations “as they pertain to short-term/vacation rentals,” and stated that neighborhoods zoned as T3 were limited to permanent residential use, which precluded rental accommodations per night, week, or anything less than one month.

Notably, the T3 zone encompassed most of the City’s single-family houses and duplexes. When residents who had been using Airbnb to rent their properties spoke against the resolution, residents were directed to state their name and address for the record, and the City Manager made the comment that the City was “now on notice” of those who spoke against the City’s code and that he would direct his staff to enforce the City code.


Continue Reading Limited Vacancy: Florida Appeals Court Rules in Favor of the City of Miami’s Airbnb Rental Ban