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.

We have been contacted quite a bit lately regarding Seller’s legal options when a Buyer does not show up to closing or backs out of the deal on the eve of closing, or simply refuses to close. The answer to this question actually depends on what remedies the sales contract grants in that circumstance.

Typically, the vast majority of residential contracts in Florida are written on some version drafted by FAR/BAR, so there is some consistency to a seller’s remedies upon a buyer’s default.

Questions to consider:

Is the buyer in default?,

What is the reason (legal or otherwise) that the Buyer is refusing to close; unable to get financing (financing contingency)?,

Is the Buyer still within the inspection period?,

Has a title defect been discovered that the seller was unable to cure within the contract’s cure period?   

All of the above events may give rise to a Buyer’s legitimate right to terminate the contract, and in that case no Buyer default would exist. However, assuming that a buyer default does exist, the FAR/BAR contracts set out a seller’s remedies in section 15(a), which states:

If Buyer fails, neglects or refuses to perform Buyer’s obligations under this Contract, including payment of the Deposit, within the time(s) specified, Seller may elect to recover and retain the Deposit for the account of Seller as agreed upon liquidated damages, consideration for execution of this Contract, and in full settlement of any claims, whereupon Buyer and Seller shall be relieved from all further obligations under this Contract, or Seller, at Seller’s option, may, pursuant to Paragraph 16, proceed in equity to enforce Seller’s rights under this Contract.  The portion of the Deposit, if any, paid to the Listing Broker upon default by Buyer, shall be split equally between Listing Broker and Cooperating Broker; provided however, Cooperating Broker’s share shall not be greater than the commission amount Listing Broker had agreed to pay Cooperating Broker. So, in short, the seller has two remedies upon a breach: 

1) Retain the deposit which was paid or agreed to be paid. (in which case that is the seller’s sole remedy), or

2) Seek to “proceed in equity” to enforce the seller’s rights.  That basically means that the seller can ask a court to force the buyer to follow through with the contract, and purchase the property. Of the two remedies, sellers opt for the first in the vast majority of circumstances.  The second remedy involves the filing of an expensive, drawn out, and uncertain lawsuit – and the property will be tied up for the entire duration.  It is important to remember that before the seller can avail itself of any remedy, it is required by paragraph 16(b) to make an attempt to mediate the dispute. What are the take-aways from the above process? Since sellers will most often resort to retaining the deposit upon a buyer’s breach, it is important for them to ensure that the amount of the deposit is sufficient to cover any actual damages that they are likely to suffer if the buyer fails to close. 

a) Many sellers’ attorneys will alter the language of the contract to allow them to recover any actual damages that they may incur as a result of a buyer default, even if greater than the deposit amount. 

b) If the seller does elect to retain the deposit as its remedy, can it get the property back on the market quickly?  Some sellers are concerned that signing a second sales contract while the first has not been recognized as “cancelled” by the original buyer could result in two active contracts on the property.  Generally, once a party to a contract has defaulted on its obligations, the other party is no longer obligated to perform.  So, once a buyer commits a material breach of the agreement, the seller is no longer obligated to honor the contract, and is free to enter into a second agreement to sell the property in order to mitigate damages.  Deciding whether this is the best course of action can be tricky since it requires several legal determinations.  Is the buyer actually in default?  Is the default of a material term?  Is there any valid excuse for the failure of performance?  For that reason, before a seller declares a buyer in breach, demands the deposit paid, and enters into another contract for the property, they will likely want to consult with an experienced real estate attorney to confirm that course of action. 

As always, should you have any questions regarding the foregoing we urge you to consult with a Florida real estate attorney.

After an HOA foreclosure action has been filed and served on an Owner, BUT PRIOR to the Court entering a final judgment in the action or ordering the foreclosure sale, a homeowner can file a “qualifying offer” indicating his or her intent to pay all amounts owed to the association within a period of not more than 60 days.

Fla. Stat. §720.3085(6). The filing of a qualifying offer stays proceedings and the accrual of attorney fees and costs to permit the homeowner time to satisfy the association’s claim. A homeowner may not make an effective qualifying offer if the property’s mortgage is in foreclosure, if the homeowner has filed bankruptcy, or if the trial date of the foreclosure action is set for less than thirty days in the future.

With regard to foreclosures in general, Florida law permits homeowners to “redeem” a property in foreclosure at any time prior to certification of the sale by the clerk or a later date specified by the judge in the foreclosure order. Fla. Stat. §45.0315. A home is redeemed by paying all past-due amounts, including any foreclosure costs.

With regard to foreclosures in general, Florida law permits homeowners to “redeem” a property in foreclosure at any time prior to certification of the sale by the clerk or a later date specified by the judge in the foreclosure order. Fla. Stat. §45.0315. A home is redeemed by paying all past-due amounts, including any foreclosure costs.

How many times have you thought about resigning from your home owners association’s board of directors because you are frustrated and unappreciated. I can imagine many times. However, it is important not to resign without considering the implications and later regret. It is important to note, in Florida, Section 617.0807 of the General Not For Profit Corporate Act provides that a director may resign at any time by delivering a written notice to the board of directors. Such resignation is effective when the notice is delivered unless the notice specifies a later effective date.

The statute further provides that resignations must be in writing and most reasonable people agree that email constitutes written communication. Therefore, resigning in haste via email (which I see often) can pose a big problem for association directors who later regret that decision. The statute does not require anyone to actually “accept” the tendered resignation so if a frustrated director writes an email to his or her fellow directors tendering a resignation in the hopes that someone will talk them out of it, it is already too late as they are off the Board. Of course, he or she can appeal to the board to be reappointed to the seat he or she just vacated by virtue of resigning but there is no guarantee that will happen.

If you are an association director who is considering resigning from your board, take your time to think about this very important decision before sending a hasty email. 

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.

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).