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Mobile Home Park Rent Gouging – What Can Be Done?

By: Erin Glover-Frey, Senior Attorney

One of the issues our firm is seeing more and more of are dramatic increases in lot rent in mobile home communities. Most often, these communities are 55+ communities, meaning the vast majority of the residents are retirees, who thought they were moving to Florida to live the good life, but instead have been shouldered with ever-increasing expenses while still trying to live on a fixed income. 

This phenomenon is not limited to Florida and is happening nationwide. In September, a class-action lawsuit was filed in Illinois against the nation’s largest mobile home park management companies, alleging a conspiracy to inflate lot rental prices for older and low-income residents. How do management companies do this? Don’t these people have contracts that would prevent such drastic rent increases? Unfortunately, the answer is often no.

In Florida, mobile home parks are governed by a document called the “prospectus.” The prospectus sets out the terms of living in the mobile home community. Often the prospectus sets a “maximum” amount that rents can go up, such as tying rents to the Consumer Price Index (“CPI”). If the CPI goes up 5%, then rents go up 5%. Simple. But maybe not.

Florida law also provides a way for mobile home park owners to increase rents beyond that authorized in the prospectus. They simply have to give owners 90 days notice of the increase and provide evidence of comparable rents in other parks, presumably to show that the cost of living has increased in the community at large, and so should rents increase to keep up. Here is where the collusion with other park owners comes in. If all the companies agree to a set price they can artificially make it look like the rents are the “market” price for rent. The silver liming is that the rent increase process is technical, and park owners must follow it to the letter or else they may not succeed in raising rents.

Another way that park owners raise rents is when new tenants move into the park. Generally, all lot leases in the park start on the same day of the year – typically September 1. When a new tenant buys their mobile home and leases the lot, they take over the lease of the previous tenant for the remainder of the year. However, when September 1 comes around, this new tenant has to enter a new lease that the park owner will set at the “market rate,” which is generally set much higher than whatever rent the previous tenant was paying. Again, collusion comes into play to set the “market” price. The more new tenants who move into a park, the higher the average rent becomes, and the more park owners can justify raising rents for everyone to keep up with the market. It’s a vicious cycle.

The attorneys at Kistemaker Business Law Group are experienced with challenging mobile home park rent increases. While not every rent increase is unjustified, a skilled attorney may be able to assist you with challenging your rent increase.

Navigating Errors: The Importance of Corrective Deeds

By: Rima Suleiman, Esq.

A corrective deed, also known as a correction deed or deed of correction, is a legal document used to correct errors or omissions in a previously recorded real estate deed. Deeds are legal instruments used to transfer ownership of real property from one party to another. However, mistakes can occur during the drafting or recording of a deed, and a corrective deed is a way to address and rectify these errors.

Here are some common reasons for using a corrective deed:

Typographical Errors: Corrective deeds are often used to fix typographical errors in the names of the parties involved, the property description, or other relevant details.

Inaccurate Legal Descriptions: If there are errors in the legal description of the property, such as incorrect boundary details or missing information, a corrective deed can be used to provide accurate and corrected information.

Missed Signatures or Notary Acknowledgments: If a deed was not properly executed with required signatures or notary acknowledgments, a corrective deed may be used to remedy these deficiencies.

Incorrect Property Information: Errors in the property address, parcel number, or other details related to the property can be corrected through a corrective deed.

It’s important to note that a corrective deed doesn’t erase the original deed but rather serves to amend and clarify the inaccuracies in the recorded document. The corrected information is added to the public record through the recording of the corrective deed.

When preparing a corrective deed, it is advisable to consult with a real estate attorney or other legal professionals to ensure that the document meets the legal requirements and is properly executed.

Importance of a Company’s Name and Risks of Allowing Your Company to Be Administratively Dissolved

By: Rima Suleiman, Esq. 

In Florida, as in many other states, there are specific regulations and guidelines regarding the naming of corporations. When choosing a name for your corporation in Florida, you should consider the following factors:

Name Availability: Before registering a business name, you should check its availability to ensure that it is not already in use by another business. The Florida Division of Corporations provides an online search tool where you can check the availability of a business name.

Uniqueness: The name should be distinctive and not likely to cause confusion with existing businesses. It should also comply with any guidelines set by the Division of Corporations.

Legal Structure Designators: Florida may require the inclusion of certain legal structure designators in the business name, such as “Corporation,” “Incorporated,” “Corp.,” or “Inc.”

Restricted Words: Certain words may be restricted or prohibited. The Florida Division of Corporations has guidelines on the use of certain terms, and you should ensure that your chosen name complies with these rules.

Approval Process: After submitting the necessary documents for business registration, the Division of Corporations will review the application, including the proposed name. If the name meets all the requirements, it will be approved.

Trademark Considerations: While the Division of Corporations checks for name availability within the state, it’s essential to conduct a broader search for trademarks to ensure there are no conflicts at the national level.

To check the availability of a business name and find more information about naming requirements in Florida, you can visit the official website of the Florida Division of Corporations or contact them directly. Additionally, consulting with a legal professional or business advisor familiar with Florida business regulations can provide valuable assistance in ensuring compliance with all relevant naming requirements.

Importance of having a Well Written Residential Lease:

By Erum Kistemaker

It is important to note, that any lease for more than one year must be in writing to be binding. Therefore, it is important to have a written lease for a term of a year or more (long term lease). We suggest counsel is hired to prepare and review such a lease. It is critical that essential terms are included in the written lease to protect both the Landlord and Tenant. Some of those essential terms are as follows: term of lease; base rent and cam payment, late fees interest and default terms; terminating the lease with or without cause; dispute resolution; venue; and prevailing fee provisions.

Condo Election Recalls in Florida

By: Rima Suleiman, Esq.

Living in a condominium comes with many perks, but it also involves community governance. One crucial aspect of this governance is the ability to initiate a condo election recall, a powerful tool that allows residents to hold their elected leaders accountable. In this blog, we’ll explore the ins and outs of condo election recalls in Florida, empowering you with the knowledge you need to shape your community.

Understanding Condo Governance:

Before diving into condo election recalls, let’s briefly review the structure of condo governance in Florida:

Board of Directors: Condo associations are typically managed by a board of directors. These individuals make important decisions about the community’s finances, maintenance, and rules.

Elected Leaders: Board members are elected by the condo owners to serve a specified term.

Accountability: Elected leaders must act in the best interests of the community, and residents have the right to hold them accountable if they fail to do so.

The Condo Election Recall Process:

Florida condominium unit owners have options when it comes to the recall process. Section 718.112(2)(j) of the Florida Condominium Act states that any board member can be recalled and removed from office with or without cause by a vote or written agreement of a majority of all voting interests.

Recall By Vote

Careful attention must be given to all notice and quorum requirements for a recall. A special meeting of the unit owners to recall a member or members of the board may be called by 10% percent of the voting interests giving notice of the meeting as required for a meeting of unit owners (i.e. 14 days), and the notice shall state the specific purpose of the meeting. Email may not be used as a method of giving notice for a recall. If the recall is approved by a majority of all voting interests (51%) by a vote at a meeting, the recall will be effective. Thereafter, the board must notice and hold a board meeting within five (5) full business days after the adjournment of the unit owner meeting to recall one or more board members. The recalled board member shall be recalled effective immediately upon conclusion of the board meeting, provided that the recall is facially valid.

Recall By Written Agreement

If the proposed recall is by an agreement in writing by a majority of all voting interests (51%), the agreement in writing or a copy thereof must be served on the association by certified mail or by personal service by process server. The Division Condominium maintains a form recall by written agreement document that should be used. The board must then notice and hold a meeting of the board within five (5) full business days after service of the agreement in writing. Such member or members shall be recalled effective immediately upon the conclusion of the board meeting, provided that the recall is facially valid. The recalled board member shall be recalled effective immediately upon conclusion of the board meeting, provided that the recall is facially valid.

Essentially, facial validity means that the analysis of a voting ballot will be viewed by looking at the “four corners of the ballot.”  In Swint v. Flamingo South Beach I Condominium Association, Inc., Arb. Case No. 2021-03-1388, Summary Final Order (November 18, 2021), the chief arbitrator discussed Division precedent concerning the review of recall ballots and what makes a ballot facially invalid and stated the following:

Examples of facial invalidity include:

(1) the votes on the recall ballots were pre-marked;

(2) the recall ballot did not provide an opportunity for the voter to cast a vote individually to recall or retain, each board member targeted for recall;

(3) the ballot did not contain a signature; and 

(4) there are no markings on a ballot indicating that the unit owner voted to recall or retain a board member, i.e., where no check is in the box next to the board member’s name.

Challenge Petition

If the association certifies the recall of one or more board members, a board member who has been recalled has the right to an action challenging the recall certification by the association. A challenge to the recall must be filed within 60 days of the certification. However, the only issue determining whether a recall is valid is whether enough unit owners voted for recall. The required vote is a majority of all voting interests. There is usually one voting interest per unit.

Why Condo Election Recalls Matter:

Condo election recalls in Florida are crucial for several reasons:

Accountability: They hold board members accountable for their actions, ensuring that they act in the best interests of the condo community.

Resident Empowerment: They empower condo owners to actively participate in the governance of their community and influence its direction.

Maintaining Harmony: The threat of a recall encourages board members to be responsive to residents’ needs and concerns, promoting harmony within the community.

In conclusion, condo election recalls in Florida are an essential tool for condo owners who want to ensure their community is well-managed and that their elected leaders act in the best interests of the community association. By understanding the process and your rights, you can actively shape the future of your condo community and contribute to a harmonious living environment.

Florida Legislative Update: SUMMARY OF LAWS TAKING AFFECT OCTOBER 1, 2023 – HOAs, Condos and Cooperatives

The following new laws were adopted by the State of Florida impacting community associations:

House Bill 919

Meeting Notices – Board meeting notices must now include specific agenda items, except in the case of emergencies.

Construction Deposits – Deposits that are collected from a member for construction purposes must be kept separately and returned within 30 days after completion of the project, looking much more like the requirements for security deposits in the rental of real property.

Restrictions on gifts  – Broad protections have been added such as officers, directors and managers are prohibited from soliciting or accepting anything of value without providing consideration in return, except for minor food expenses or trade fair-related goods or services.

Crimes – The immediate removal from office is now mandated for officers or directors charged with specific crimes, including forgery, theft/embezzlement, destruction of records and obstruction of justice.

Conflict of Interest – Disclosure of conflicts of interest are required annually for developer-appointed board members and officers, as well as for all directors and officers before voting on matters that are influenced by the conflict.

HOA Fines – HOAs that exercise their long-standing right to impose reasonable fines for violations must hold mandatory hearings before the independent hearing committee before the fine may be made due and owing.

New Section, Section 720.3065, has been added to address fraudulent voting activities and associated penalties, classifying them as first-degree misdemeanors. These provisions aim to enhance transparency, accountability and fairness within homeowners’ associations in Florida.

House Bill 437 – HOA – Big Change

This bill introduces provisions that limit the ability of HOAs in Florida to restrict the installation, display or storage of certain items on parcels. Regardless of any association rules or covenants, associations cannot prohibit parcel owners or tenants from installing, displaying or storing items that are not visible from the frontage or adjacent parcels, such as artificial turf, boats, flags and recreational vehicles. This is likely to cause a lot of problems in HOAs, especially for communities that have homes that abut a body of water and are visible from the other side of the water. Finally, homeowners have the right to display up to two flags, including the United States flag, the official flag of Florida, military branch flags, the POW-MIA flag and first responder flags, in a respectful manner, including on freestanding flag poles. While the right to fly these flags is not new, its expansion to two flags and the expanded list of flags that may be flown are substantial changes that every HOA needs to be aware of.

Why and How to Avoid Probate

By: Erum Kistemaker

Why and How to avoid Probate?:

  1. Reason to Avoid Probate – Probate requires filing legal pleadings and court papers, appearance at court hearings, and representation by a licensed lawyer, probate in Florida is expensive and lengthy. Families typically must wait six months or more to complete the probate legal process and receive their inheritance.
  2. Estate planning techniques to avoid – File for a simplified probate (Summary Administration), creating living trusts, joint ownership or joint tenancy of real property, making gifts, using Florida “Lady Bird” deeds, transfer-on-death registration for securities, payable-on-death designations for bank accounts, and beneficiary designations for life insurance policies and retirement accounts. Each method has its own benefits and considerations, so it’s important to consult with an attorney to determine the best approach for your specific situation.

Empowering Healthcare Decisions: A Comprehensive Guide to Living Wills and Healthcare Surrogates in Florida

Written by: Rima Suleiman

In the complex realm of healthcare decisions, having a plan in place can provide both peace of mind and clarity for individuals and their loved ones. In Florida, the legal instruments of living wills and healthcare surrogates empower individuals to assert their preferences and make informed choices regarding their medical care, even when they are unable to communicate their wishes. Below are brief explanations of the importance of living wills and healthcare surrogates in Florida, the legal requirements for these documents, and how they can bring assurance during critical moments.

Understanding Living Wills: Your Voice in Healthcare

A living will, often referred to as an advance healthcare directive, is a legal document that enables you to articulate your medical treatment preferences in circumstances where you cannot convey them due to incapacitation. This document comes into effect when you are diagnosed with a terminal condition, an end-stage condition, or find yourself in a persistent vegetative state.

Key Components of a Living Will in Florida

Artificial Life-Prolonging Procedures: Your living will provides you with the opportunity to specify your preferences concerning various medical treatments, including the use of ventilators, feeding tubes, and other artificial life-prolonging procedures. You can indicate whether you wish to undergo these interventions or not.

Organ Donation: Florida’s living will form also offers you the option to express your intentions regarding organ donation.

Appointment of a Healthcare Surrogate: While the primary focus of a living will is to outline your treatment preferences, it additionally allows you to appoint a healthcare surrogate. This individual will make healthcare decisions on your behalf if your condition does not precisely align with the scenarios outlined in your living will.

Healthcare Surrogates: Trusted Decision-Makers

A healthcare surrogate, also known as a healthcare proxy or agent, is a person chosen by you to make medical decisions on your behalf when you are unable to do so. This person should be someone you trust implicitly to act in your best interests and in accordance with your wishes.

Designating a Healthcare Surrogate in Florida

In Florida, you can designate your healthcare surrogate by completing a specific form. This document should include the following details:

Surrogate’s Designation: Clearly state the full name of the person you are appointing as your healthcare surrogate.

Alternate Surrogate: It is wise to name an alternate surrogate in case your primary surrogate is unavailable or unable to fulfill their duties.

Powers and Limitations: Define the powers and limitations of your healthcare surrogate to ensure they fully understand your preferences.

Signatures and Witnesses: The document must be signed by you in the presence of two witnesses, neither of whom should be the designated surrogate. 

Revocation: You retain the right to revoke or change your surrogate designation at any time, as long as you are mentally competent to do so.

The Intersection of Living Wills and Healthcare Surrogates

Living wills and healthcare surrogates in Florida work in tandem. Your living will serves as a guide for your surrogate, providing explicit instructions about your end-of-life wishes. In scenarios where the living will does not explicitly address your medical condition or treatment, your healthcare surrogate can make decisions that align with your overarching values and preferences.

Conclusion

Planning for end-of-life decisions can be emotionally challenging, but it is a vital part of responsible life management. In Florida, living wills and healthcare surrogates provide a legal framework to ensure that your medical preferences are upheld when you are unable to express them yourself. By taking the time to create these documents and selecting trustworthy attorney to act on your behalf, you can find solace in knowing that your healthcare decisions will align with your values and desires. Consulting with an attorney or healthcare professional can help navigate the complexities of these documents and ensure they adhere to Florida law. 

The second substantive change is the SIRS

Like the milestone inspection, the SIRS involves a visual examination of certain building components deemed critical to structural soundness and safety. Its purpose is to determine an annual reserve amount that achieves the estimated replacement or deferred maintenance cost for the components, by the end of their useful lives. Condominiums must then incorporate those amounts into their annual budgets, meaning associations can no longer waive reserves for the specific SIRS components. SB 4-D also set the initial SIRS deadline as

December 31, 2024

– for condominium associations existing on or before July 1, 2022.A major concern with SB 4-D was that the SIRS components included load-bearing walls, floors, and foundations. Performing a visual inspection of these items, however, may be difficult or practically impossible without significant destructive work. The original list of SIRS components also included windows, but condominium associations typically only maintain windows if they are included as common elements (i.e., not windows deemed part of the units). Additionally, SB 4-D was unclear as to when annual budgets must start including reserves for SIRS components despite the initial deadline to have a SIRS report completed. Again, there were also numerous concerns with the feasibility and implementation of the SIRS.    SB 154 attempted to address these as well. For example, floors and foundations were removed from the list of SIRS components, and “load-bearing walls” was replaced with: “structure, including load-bearing walls . . . and primary structural systems as those terms are defined in s.627.706.” In addition, windows are now accompanied by “exterior doors,” along with clarification that the SIRS requirement only applies to components maintained by the association. SB 154 also authorized those performing the SIRS to determine that no reserves are required for certain components with an estimated useful life greater than 25 years – or the SIRS may recommend a deferred maintenance expense for such components. Either way, this was intended to address “structure” or any other SIRS component that may be difficult or impossible to inspect. Finally, the mandatory reserve requirement was clarified to apply to any budget adopted on or

after December 31, 2024

– meaning one adopted beforehand is the last time a unit owner-controlled condominium association can provide no reserves or less reserves than required by the SIRS.It is important to note that there are many additional aspects to SB 4-D that continue to remain in place. Furthermore, SB 154 includes new provisions that were not originally part of SB 4-D. It will thus take some time to reconcile both bills to understand the full impact on condominiums going forward. But the general takeaway from this “glitch bill” is that milestone inspections, SIRS, and increased reserve requirements are here to stay.

SB154/Milestone Inspections


By: Erum S. Kistemaker, Managing Partner (Attorney), Juris Doctorate

  • A milestone inspection is a mandatory inspection that is required when a condominium reaches a certain age. The association is required to visually inspect all buildings, three stories or more, for substantial structural deterioration per SB 4D that was passed in the 2022 legislative session. If any is detected, the association must perform testing and/or repairs. SB-4D set the initial deadline for milestone inspections as December 31, 2024, or by the end of the year in which the condominium turns 25 or 30 years old, depending on its vicinity to the coastline. According to some experts, this instantly triggered the inspection requirement for over 20,000 condominiums across the state. Therefore, making Compliance by December 31, 2024 UNreasonable or UNachievable under SB 4-D. For example, milestone inspections had to be performed directly by a limited pool of licensed architects or engineers *WHICH HAS BEEN CHANGED UNDER SB 154. In addition, the 25-year deadline for certain coastal condominiums had already passed, or the method of computation caused the inspection outside date to be sooner than the end of 2024. SB 4-D also permitted local enforcement agencies to send compliance notices, but it was unclear whether the notices could effectively shorten or extend the statutory deadlines. Causing numerous concerns with enforcement and implementation of the milestone inspection requirements *SEVERAL OF MY CONDOS IN DAYTONA BEACH HAVE STARTED TO RECEIVE THESE NOTICES FROM THE CITY OF DAB. SB 154 attempts to address these concerns.
  • First, milestone inspections can now be performed by a “team of professionals” working under a licensed architect or engineer.
  • The initial deadline for condominiums reaching 30 years old between July 1, 2022 and December 31, 2024, was extended to December 31, 2025. This addressed the deadlines that had already passed, or those with outside dates sooner than December 31, 2024. Therefore, the notices become moot.
  • SB 154 also removed the strict 25-year deadline for coastal condominiums, and instead, authorized local enforcement agencies to impose a 25-year deadline for any applicable condominium because of local circumstances, such as the proximity to saltwater.
  • SB 154 revised the notice procedure for local enforcement agencies, which can now extend the milestone inspection deadline for a condominium that shows
  • good cause (e.g., a pending contract for a milestone inspection that cannot be reasonably completed by the deadline).

To access our Facebook Live video on the topic – click here – https://www.facebook.com/KistemakerBusinessLawGroup/live_videos/