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.

Many owners/board members, and even CAMs assume that amendments that did not receive the requisite amount of membership consent are automatically invalidated by the courts. This is only true, however, if the issue is brought to the courts in a timely fashion and with the requisite limitation period. 

In many cases, waiting around and failing to take action may convert what should be an invalid amendment into an enforceable obligation due to the application of the statute of limitations.

Statute of Limitations sets forth the maximum time frame to file a legal action making a claim or to enforce a party’s rights, depending upon the type of claim being made. After that statutorily-indicated time period runs, any claim asserting that cause of action will likely fail, regardless of whether the person or entity bringing the case is “right” or wrong”.
In Florida, the most often cited Statute of Limitations is found in Section 95.11, F.S., which contains the time limits for the following common types of cases, I have included the pertinent section below regarding amendments to governing documents:FIVE YEARS: An action on a judgment or court decree; an action on a written contract; an action to foreclose a mortgage and other actions founded on written instruments.

Section 718.112(1)(b) of the Act states that amendments to the articles of incorporation or bylaws are not valid unless recorded in the public records of the county where the declaration of condominium is recorded. Further, Chapter 617, the Florida Not For Profit Corporation Act, provides that amendments to the articles of incorporation must be filed in the office of the Department of State.

Legal Summary/Case Law:
Florida appeals courts have clarified the deadline for challenging an association’s governing documents. The court rulings establish that any challenge to the governing documents must be brought within five years of their recording or, in certain situations, five years from the date in which the challenger takes title to the property if subsequent to the recording.Florida’s First District Court of Appeal brought clarification to this issue in February 2016. A husband and wife had sued their HOA in July 2013 challenging the validity of amendments to the HOA’s restrictive covenants that were passed in 2001 and 2005. The trial court ruled the amendments were not properly voted on and invalidated both.Subsequently, another homeowner entered the case and appealed to the First DCA, claiming that the lawsuit was filed long after the five-year time limit on both amendments had expired.The appeals court found that the time limitation had in fact expired. Its rationale was founded in part on a section of Florida statutes which provides that “legal or equitable action on a contract, obligation or liability founded on a written instrument … shall be commenced within five years.” The decision was also based on one of its opinions issued in 2015 regarding the statute of limitations and on a 2014 ruling by the Fourth District Court of Appeal.In the case resulting in the 2015 opinion, a developer had recorded an amendment to the restrictive covenants in December 2000. In March 2009, the HOA challenged the validity of the amendment. The court held the association had failed to act within the five-year time limit. It said that whether one is a condominium association governed by Florida Statutes Chapter 718 or a homeowner association governed by Florida Statutes Chapter 720 is determined by the association’s governing documents, including declarations, bylaws and articles of incorporation including any amendments. Once a governing document or amendment is recorded, the clock starts to run on a challenger’s ability to contest the validity of its controlling instrument.

By: Erin Glover-Frey, Esq.

            On January 28, 2020, the US Department of Housing and Urban Development (“HUD”) issued new guidance on when a housing provider must provide a reasonable accommodation of “assistance animals” for disabled residents under the Fair Housing Act. “Assistance animals” includes both service dogs – i.e. dogs individually trained to perform work for the disabled resident – and the more contentious “emotional support animals” that provide assistance to the disabled person just by virtue of being an animal. Condominiums and Homeowners Associations are housing providers subject to the Fair Housing Act and must provide disabled residents with reasonable accommodations of their disabilities upon legitimate request, even if the accommodation would be in violation of the association’s governing documents.

The new HUD guidance clarifies the types of animals for which housing providers are required to provide an accommodation, and specifically excludes reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals, unless unique circumstances exist.

            HUD also clarified that assistance animal documentation from the internet “is not, by itself, sufficient to reliably establish that a person has a non-observable disability or disability-related need for an assistance animal.” In other words, a housing provider does not have to provide an accommodation based on an internet registration alone, however a medical or mental health provider may still assess the disabled resident via the internet.

To simplify the process for reviewing a request for a reasonable accommodation, HUD provided a step-by-step inquiry for housing providers as follows:

1. Does the person have an observable disability or does the housing provider already have information giving them reason to believe that the person has a disability?

Yes à Skip to Question 3

No à Go to Question 2

• Has the person requesting the accommodation provided information that reasonably supports that the person seeking the accommodation has a disability?

Yes à Go to Question 3

No à Give the requester reasonable opportunity to provide this information. If the requester cannot provide the information, then the housing provider may deny the accommodation request.

• Has the person requesting the accommodation provided information which reasonably supports that the animal does work, performs tasks, provides assistance, and/or provides therapeutic emotional support with respect to the individual’s disability?

Yes à Go to Question 4

No à Give the requester reasonable opportunity to provide this information. If the requester cannot provide the information, then the housing provider may deny the accommodation request.

• Is the animal commonly kept in households (dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other, small domesticated animal)?

Yes à The housing provider should provide an accommodation, unless doing so would constitute a direct threat to the health or safety of other individuals that cannot be eliminated or reduced to an acceptable level through actions of the owner.

No à The housing provider does not need to provide an accommodation, except under very rare and unique circumstances.

            These questions, though helpful, still leave wiggle room for loopholes and fraudulent requests for accommodation. If you are a housing provider and are presented with a request for an accommodation, to avoid costly litigation in the future, the best practice is to consult with an experienced and knowledgeable attorney before making any decision.