By: Erin Glover-Frey, Esq.

One of the biggest issues plaguing Florida condominiums and HOA’s are short-term rentals and the havoc of “party houses.” When bars shut down in 2020 during the COVID pandemic, creative party hosts turned to renting entire houses on AirBNB for just one night, in which to host both friends and strangers for a rager. Quickly seeing the problems these “party houses” created for neighbors and citing to public health concerns, in August, 2020, AirBNB created the first of several restrictions on party houses, including barring more than 16 occupants per unit and suspending guests who publicly advertise parties on social media.

In June, 2022, AirBNB took one step further to make its party house ban official. The official policy of the company is now to limit each rental to 16 guests, except for large properties big enough to accommodate more. Guests who wish to book for one night only on a holiday weekend may be required to have a positive prior review for approval of the booking. For two-night bookings on holiday weekend, such as the 4^th of July, AirBNB will monitor for local residents or last-minute attempts to book a property.

Additionally, AirBNB has instituted a Neighborhood Support Line, available at www.airbnb.com/neighbors, where neighbors can report disruptive parties. AirBNB may suspend guests and hosts who are reported offenders. Community associations can also turn to the Neighborhood Support Line for help in shutting down chronic nuisance party houses.

As always, associations can use their authority to fine, suspend use of common areas and elements, and charge back expenses against owners who allow nuisance party houses or whose guests and tenants cause damages to the common property.

Recently, the U.S. Supreme Court struck down the CDC’s extension of the nationwide Eviction Moratorium which was set to expire on October 3, 2021. The Supreme Court’s conservative majority stated that “The moratorium has put . . . millions of landlords across the country at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery. Many landlords have modest means. And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership – the right to exclude.”

What does this mean for Landlords? The lift on the moratorium ban has provided immediate relief to Landlords as they can start evicting non-paying Tenants. While some Courts still recognize the right to obtain rental assistance, evictions can now proceed. Due to the moratorium lift, the number of evictions filed have increased. This can cause delays and confusion for your case. And if you are a landlord who is not familiar with the eviction process to begin with, then your confusion can lead to devastating outcomes. Therefore, it is advantageous to hire a lawyer who understands how to navigate the eviction process. While evictions are not complicated, they are nuanced, and it is better to avoid unnecessary delay and potential costs by hiring an attorney to assist you in reaching the desired outcome of your case.

If you are a landlord, the moratorium lift means having a chance at recouping your lost costs. Don’t miss the opportunity because of potential confusion. If you have any questions on how to proceed next, please call our office at (386) 310-7997.

Kistemaker Business Law Group is pleased to welcome Rima Suleiman as the company’s new paralegal/office manager.

Rima Suleiman is a recent law school graduate of Florida State University where she received her J.D. Rima also received a University of Central Florida, B.S. degree in 2017 and graduated cum laude, Order of Pegasus. She is fluent in Arabic and can speak intermediate French. She also has a beginner’s understanding of Mandarin.

In law school, Rima was a judicial clerk to the Honorable Judge Feigenbaum of the Seventh Judicial Circuit Court. She conducted research and produced a thesis paper analyzing COVID-19 and States of Emergency: The Rule of Law and Risks to Civil Liberty.Prior to joining Kistemaker, Rima completed internships with former Florida Senator, Bill Nelson, and former diplomat to the U.S. Department of State, Ambassador Harriet Elam-Thomas. ​Under her direction, Rima researched and produced a case study on The KRG and the Ascent of Women as Political Leaders.

Rima was awarded the Lester N. Mandell Diplomacy Fellowship on behalf of the Global Perspectives Office at UCF and the Global Connections Foundation. Rima was also awarded both the Non-Traditional Literacy Engagement Award and Recognition of Excellence in the College of Arts and Humanities for the 13^th Annual Service Learning Showcase at UCF for her volunteer work with children in the public school system.

Force Majeure clauses have become a hot topic among legal circles and within the business and real estate worlds. With so many companies and individuals finding themselves in difficult and unique times many are looking for ways to terminate their legal contractual obligations. often times,  contracts include “Force Majeure” clause.  Such clauses are often drafted to assist the parties when unforeseeable circumstances arise that prevent a party from fulfilling its obligations under a contract.  The COVID-19 pandemic and current civil unrest make it necessary for all businesses to consider the implications of the Force Majeure terms of its contracts.   

A Force Majeure provision in a contract is intended to excuse a party’s performance if specified circumstances beyond the party’s control arise making performance impracticable, illegal, or impossible. Force Majeure provisions typically have three elements:  (1) a list of types of events that are deemed to be triggering events, (2) a statement identifying the party bearing the risk of such a triggering event, and (3) a set of statements identifying the effect of such a triggering event on the obligations of the parties to the contract. 

Triggering events typically fall into two groups.  The first group comprises acts of nature such as earthquakes, floods, fire, famine, plague, and “Acts of God.”  The second group comprises political and governmental acts.  These include terrorism, riots, war, strikes, change of law or regulation, and orders issued by the government.  The COVID-19 pandemic could arguable fall within the first group, and the orders being issued by the federal government, and state and local governments across the country, fall into the second group.  

It is important to review the Force Majeure provisions of a specific contract to see exactly what triggering events are listed. It can be argued that if there is NO language contemplating a pandemic or health crisis as a triggering event, the COVID-19 pandemic may not be recognized as an event to terminate a contract. 

More importantly, It is not enough, that the event be identified as a triggering event in the contract’s Force Majeure provisions.   The event must also be a direct cause of a party’s inability to perform its contractual obligations.  If the party’s performance is not unduly hampered by an event, performance is typically not excused.  For example, several states have ordered non-essential businesses to cease operations.  If a company is not operating in one of these states or is deemed to be an essential business, the issuance of the order may not excuse performance.

One must also read the Force Majeure provisions to see what affect the event has on the performance requirements of the parties.  Sometimes the effect is to delay performance until the time the circumstances return to normal.  Other times, the effect is to excuse performance altogether.  In still other cases, the Force Majeure clause may specify that the contract is terminated (or may be terminated at the option of a party) should a Force Majeure event occur and affect operations for an extended period specified in the contract.

A Reserve Study is a long-term budgeting tool utilized by common interest communities which provides a long term (usually 30 years) timeline of costs and dates for replacement of common area components.

Common areas such as roofing, paint, and pavement all have limited useful life expediencies and a Reserve Study provides a community necessary information to adequately save for the expected replacement of these items over time.

Learn more:

Q&A:Question:What is a limited proxy

Answer: A limited proxy is a proxy that directs the proxy holder to vote on those specific issues and lists the issues that a proxy holder may cast a vote on behalf of an owner. In the condominium and cooperative context limited proxies must be used for any substantive votes by the owners, such as votes to waive or reduce reserves, votes to waive financial reporting requirements, votes to amend the declaration, articles of incorporation or bylaws, and for other matters for which a vote of the owners is required. However, this is not required for HOA’s.

Condominiums are a significant segment of the housing market in Florida. However, many prospective condominium purchasers are unaware of condominium concepts or the provisions of Chapter 718, Florida Statutes, the Condominium Act. Below is some important information that should be considered prior to making a purchase.PART ONE: THINGS TO CONSIDER BEFORE PURCHASING A UNIT

1. What will be your ownership and voting rights in the association?
2. What will be your percentage share of the common expenses?
3. Are any special assessment coming up in the near future.
4. When was the last insurance appraisal or valuation and does the condo have sufficient insurance coverage for the building.
5. Review the budge.
6. Determine if the reserves are properly funded.
7. What are the restrictions on the use of the common elements and the unit?
8. Are there any leases or contracts associated with the condominium association? If so, what are their terms?
9. Do you understand all of the provisions of the documents?
10. Exactly what items will you be personally responsible for maintaining?
11. Is the condominium development completed? If not, how many units will eventually be added to the condominium development and what impact will they have on the use of the recreational amenities?
12. What is the proposed schedule for adding units or amenities to the condominium?
13. Does the developer have the option of not completing certain facilities or amenities?
14. Does the association have a history of complaints by residents of the condominium?
15. Is the association currently involved in litigation?
16. Does the association carry adequate insurance?
17. Is the condominium property well maintained?
18. Has the association established reserve funds for future capital expenditures and deferred maintenance projects?
19. Is the condominium being created a conversion, converting a previously occupied residential structure, what is the condition of the property and will major repairs be required in the near future?
20. What is the history and reputation of the developer?
21. Who is sitting on the board of directors
22. What is the association’s pet policy?
23. Are there any restrictions on the selling or renting units?
24. Are there any restrictions on the number of family members or guests who may occupy a

In closing, Gather documentation and review any HOA rules.

Disclaimer: This article is for general informational purposes only and should not be construed as legal advice or a legal opinion on specific facts or circumstances nor a solicitation of legal business. You are urged to consult an experienced lawyer concerning your particular actual situation and any specific legal questions you may have. No attorney-client relationship attaches as a result of any exchange of information.

Prior to adopting a Rule and Regulation, the board must have the authority to do so. Boards should pay special attention when establishing and adopting rules and regulations concerning unit or property use. All rules must be reasonable and tie in some manner to the safety, health and welfare of all community members.

Boards should NOT enforce the rules in an arbitrary manner.

Generally, rules made by an Association are subject to a three (3) pronged test for enforceability, to wit:
        1.      The Board of Directors must have authority to promulgate the rule (authority granted by the Declaration of Condominium or other governing documents);
        2.      The rule cannot conflict with any of the rights conferred by any of the documents of higher priority, whether those rights are expressly stated or reasonably inferable; and
        3.      The rule must be reasonable (explained as rationally related to a legitimate objective of the Association).

In Florida, community associa­tions are creatures of statute, meaning that their creation and ongoing operations are governed by statute. Chapters 718, 719 and 720 of the Florida Statutes govern the estab­lishment and operation of condominiums, cooperatives and homeowner’s associations, respectively. Each of these Chapters contains several provisions providing for the re­covery of attorney’s fees by the prevailing par­ty.

In addition, the Declaration of Covenants and Restrictions governing these communities may also contain provisions providing entitle­ment to attorney’s fees to the prevailing party in a given dispute. A Declaration contains “at­tributes of a covenant running with the land” and operates as a contract among unit own­ers and the association, spelling out mutual rights and obligations of the parties thereto. Thus, the Declaration itself constitutes a contract and if it contains provisions providing for recovery of attorney’s fees by the prevailing party, such party may rely on the Declaration as a basis for recovering such fees. In a suit in­volving a community association, therefore, a prevailing party may rely on both statutory and contractual provisions to seek attorney’s fees.

The recent amendment to Florida Statute Section 712.05 adding new paragraph 2 allows a homeowners association to preserve the covenants by an amendment which references the book and page of the covenant to be preserved. However, there is possibly a question as to whether the new statute which becomes effective October 1, 2018 applies to an Amended and Restated Declaration which was recorded prior to the effective date of the Statute. It is an important time to meet with your HOA counsel to learn more about this important amendment.