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.

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. 

By Erin Glover-Frey, Esq.

            Everyone wants a beautiful lawn and landscaping plan for their home and to look out and see another beautiful landscape across the street. That is one of the primary benefits of living in a deed-restricted community such as an HOA. The HOA and its Architectural Review Committee or “ARC” make sure that every keeps up their homes’ exterior and landscaping. One great way to make sure that everyone’s landscaping looks great is to follow a Florida Friendly Landscape or “FFL” plan. But what is that?

            The central doctrine of FFL is “Right Plant, Right Place.” If the natural terrain and conditions are correct for the particular plant, then that plant will require less water, less fertilizer, less pesticides, and generally be healthier and look better. In other words, don’t plant a shade plant in full sun and don’t plant something that likes wet soil on a sandy dune. Florida native plants are encouraged, but not required. Even turf grass, the standard for water-consuming suburban lawns, can be incorporated into a FFL. The other goals of FFL are:

• Watering efficiently – mind the seasonal watering restrictions and use rain shut offs for sprinklers
• Fertilizing appropriately – lawns should only need fertilizer twice per year
• Attracting non-nuisance wildlife like birds or butterflies
• Managing pests with insect-resistant plants
• Mulching to retain moisture in the soil
• Recycling natural resources – capture rain water for irrigation or compost yard waste
• Preventing storm-water run off – efficient watering and rain water catchment prevents pollutants from being washed into the river or ocean
• Protecting the waterfront – natural plantings on retention ponds prevent erosion

            Florida Law states that Homeowner’s Associations may not prohibit an owner from installing a Florida Friendly Landscape on his or her land. 720.3075(4), Florida Statutes and 373.185, Florida Statutes. But that does not mean that the ARC has no say in the matter. ARCs can still require approval prior to installation of a Florida Friendly Landscape and can prohibit certain plants for legitimate reasons. Just because a plant is native to Florida – like sandspurs — does not mean it should be in your neighborhood. FFL also does not mean that the owner can allow the land to “go back to nature.” ARCs can still require that a FFL be neat and manicured.

HOAs can also install FFLs in the common areas, which will reduce the Association’s costs for irrigation, fertilizer, pesticide and landscapers. Owners and ARCs should work together to ensure that the proposed landscapes both honor the goals of the Florida Friendly Landscaping laws and maintain a consistent, neat and attractive scheme of development in the community.

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.