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.

Condominium and cooperative fines are capped at $100.00 per day, and capped at $1,000.00 in the aggregate for continuing violations. Fines may not be secured by a lien against the unit, meaning that an action in small claims court is usually required to collect.

Homeowners’ association fines may not exceed $100.00 per violation, unless otherwise provided in the governing documents. There is also a $1,000.00 aggregate cap, but again, unless otherwise provided in the governing documents (may permit a greater or lesser aggregate fine). The law does permit a fine of $1,000.00 or greater to be subject to a lien.

Both

Before a fine becomes final, an independent committee must be appointed by the board. The committee (sometimes called “fining committee” or “compliance committee”) must be comprised of at least three (3) members who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee.

Notice of the opportunity for a hearing must be sent at least 14 days in advance of the hearing. If the bylaws require other information to be contained in the notice, such as a cite to the relevant document being violated or the proposed amount of the fine, that information needs to be included as well.

At the hearing, the committee must afford basic due process and allow the accused to be heard, state his case, and challenge evidence against him or her. The committee must then either “confirm” or “reject” the fine.

It is my opinion that every association should have a written policy on its fining procedures and should follow them.

Also, it is important to remember that pursuant to Section 95.11(2)(b) of the Florida Statutes that the statute of limitations for a breach of contract action is 5 years. Since your condominium documents have been held by the courts to constitute a contract, this is the standard that is used.

We often get the question: How much can we fine an Owner who violates the Association’s rules?

Condominium and cooperative fines are capped at $100.00 per day, and capped at $1,000.00 in the aggregate for continuing violations. Fines may not be secured by a lien against the unit, meaning that an action in small claims court is usually required to collect.

Homeowners’ association fines may not exceed $100.00 per violation, unless otherwise provided in the governing documents. There is also a $1,000.00 aggregate cap, but again, unless otherwise provided in the governing documents (may permit a greater or lesser aggregate fine). The law does permit a fine of $1,000.00 or greater to be subject to a lien.

Both

Before a fine becomes final, an independent committee must be appointed by the board. The committee (sometimes called “fining committee” or “compliance committee”) must be comprised of at least three (3) members who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee.

Notice of the opportunity for a hearing must be sent at least 14 days in advance of the hearing. If the bylaws require other information to be contained in the notice, such as a cite to the relevant document being violated or the proposed amount of the fine, that information needs to be included as well.

At the hearing, the committee must afford basic due process and allow the accused to be heard, state his case, and challenge evidence against him or her. The committee must then either “confirm” or “reject” the fine.

It is my opinion that every association should have a written policy on its fining procedures and should follow them.

Also, it is important to remember that pursuant to Section 95.11(2)(b) of the Florida Statutes that the statute of limitations for a breach of contract action is 5 years. Since your condominium documents have been held by the courts to constitute a contract, this is the standard that is used.

Condominium associations are limited by statute on the amount of fees which can be charged in connection with the transfer of a unit. 

The condominium association must have the right in its governing documents to approve a sale, mortgage, lease, sublease, or other transfer of a unit, in order to charge a fee in connection with such transfer. In addition, Section 718.112(2)(i), Florida Statutes provides that no such fee shall exceed $100 per applicant other than husband/wife or parent/dependent child, which are considered one applicant. This $100 state-mandated cap includes all non-refundable fees charged for interviews, background checks, credit reports, and other costs when people seek to buy or lease a condominium unit in Florida.

This transfer fee should not be confused with a security deposit which may be required, in addition to the transfer fee, if the authority to do so appears in the declaration or bylaws. The amount of the security deposit is also subject to statutory limitations. Section 718.112(2)(i), Florida Statutes provides that an association may, if the authority to do so appears in the declaration or bylaws, require that a prospective lessee place a security deposit, in an amount not to exceed the equivalent of one month’s rent, into an escrow account maintained by the association. This security deposit is intended to protect against damages to the common elements or association property.

A security deposit is to be held by the association and returned to the tenant when the lease is up if the common elements were not damaged by the tenant.

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.

Prior to adopting a Rule and Regulation, the board must have the authority to do so. Boards should most 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).

Florida is one of the many states that legalized the use of medical marijuana and therefore it is a safe bet that at some point an owner or tenant will request the ability to smoke or the substance as a reasonable accommodation for a disability.

On December 29, 2014, the U.S. Department of Housing and Urban Development (HUD) issued a Memorandum regarding the use of marijuana in multifamily properties. That Memorandum reinforced that while the use of marijuana for medical purposes has been decriminalized by several states, the Controlled Substances Act (CSA), 21 U.S.C. Section 801, et. Seq. still classifies marijuana as a Schedule 1 substance and therefore the manufacture, distribution or possession of marijuana remains a federal crime.

HUD emphasized in that Memorandum that a public housing agency or owner of federally assisted housing must take active steps to terminate the tenancy of any household with a member who illegally uses a controlled substance or whose use of such substance interferes with the health, safety or right to peaceful enjoyment of the premises by other residents.

Therefore, the following questions have arisen with regard to private housing providers like condominium, cooperative and homeowners’ associations:

1. Do community associations have a duty similar to that imposed on public housing providers to deny occupancy to residents who will be using a substance that remains illegal under federal law?
2. Can a Florida resident request a reasonable accommodation to use medical marijuana and must the association grant that request?
3. Can the association inquire on a purchase or rental application whether or not any of the proposed occupants in the home or unit currently use or plan on using marijuana?
4. Are owners who rent out their properties to Section 8 tenants required to investigate possible marijuana use and deny applications accordingly if such use is confirmed?
5. Does the prescription for medical marijuana mean an individual automatically has a disability as defined by state and federal law?