Harassment in the Workplace

Title VII is a federal law which seeks to address discrimination and harassment in workplaces. Title VII regulates employers with 15 or more employees. Title VII prohibits harassment of individuals based on the following protected characteristics: race, color, national origin, sex, religion, and some other factors.

What constitutes harassment?

For an employee to bring a harassment claim under Title VII, the employee must possess a protected characteristic as identified above, be subject to harassment, the harassment must be related to a protected characteristic as identified above, and the harassment must be severe enough that it resulted in a change in the terms or conditions of the employee’s employment or created a “hostile” work environment. Finally, there must be a basis for holding the employer liable.

A “hostile” work environment exists where harassment unreasonably interferes with the employee’s performance or creates an intimidating, hostile, or offensive environment for the employee. The conduct of the harasser must be severe and pervasive in order for an employee to establish a hostile work environment. The factors that courts analyze to determine if conduct amounts to a hostile work environment are the frequency of the conduct, the severity of the conduct, whether the conduct was physically threatening or humiliating, and whether the conduct unreasonably interfered with the employee’s job performance. The factors are analyzed through a mixed objective and subjective approach. The conduct must be subjectively perceived by the employee and the conduct must be judged objectively under a reasonable person standard.

It is important to note that employees are not protected by Title VII against general rudeness, horseplay, or even workplace flirtation. Title VII is not a general civility code and is meant to protect employees against conduct that involves patterns or allegations of extensive, long lasting, unaddressed, and uninhibited threats or conduct.

 

How should employers handle harassment?

 To limit liability for harassment claims, employers should take reasonable care to prevent harassment through training and written policies, diligently investigate any claims of harassment, and correct any reported harassment or harassment about which the employer becomes aware. An employer can minimize liability for harassment committed by a supervisor if it implements and takes the above steps in a reasonable manner. It is also important to have written policies in place and to have the policies reviewed periodically by an attorney ensure that the policies comply with current law. If you are an employer that has a written policy it is recommended to have an employee sign and acknowledge receipt of the policy.

Employers become liable for non-supervisor harassment if they knew or should have known of the harassing conduct, but failed to take prompt remedial action.

Both instances of harassment, whether supervisory or non-supervisory, require that the employer quickly and reasonably respond to any allegations of harassment. Employers can limit their liability by taking corrective action that is immediate, appropriate, and reasonably likely to stop the harassment. Examples of actions to limit liability include, confronting and counseling the alleged harasser in a prompt manner, disciplining the alleged harasser if warranted, adjusting schedules or transferring the alleged harasser to end the alleged harassment, and by being committed to training and policies which prevent harassment.

If an allegation of harassment has been brought against you as an employer, contact an attorney immediately to protect your rights.

Is Your Minor Child Protected if Something Happens to You?

By Kevin R. Albaum

My wife and I had our first child in November of last year (Nina). Our first order of business, like many others, was to purchase more life insurance coverage. We thought that by purchasing more life insurance, Nina would be provided for financially and thus protected if we were to unexpectedly die. However, in order to adequately provide for and protect a minor child in the event of both parents dying, purchasing life insurance should be just the first piece of a puzzle.

Who Gets Custody of the Minor Child?
If both parents are incapacitated and/or deceased, under Florida law, any family member or other person interested in the welfare of the minor child can petition the local probate court to become the guardian of the person and guardian of the property for the minor child. This often leads to legal fights (with a minor child caught in the middle) between aunts, uncles, godparents, and grandparents regarding who the court will choose to raise the child and manage their inheritance until the minor child turns eighteen (18).
If avoiding that potential family feud is desired, parents can proactively name a preneed guardian for their minor child in either their last will and testament or in a declaration of preneed guardian document that is filed with the local clerk of court during the parent’s lifetime. Not only can parents name the preneed guardian but they can also expressly bar someone from ever becoming the guardian of the minor child. By naming a preneed guardian, if a guardianship case is ever initiated, a rebuttable presumption arises that the person nominated by the parents as the preneed guardian is entitled to serve as the guardian for the minor child.

Don’t Accidentally Give The Minor Their Inheritance at Eighteen 
Under Florida law, a minor child cannot have more than $15,000 (in most situations) unless those funds are held in a guardianship of the property. When a guardianship of the property is in existence, there are legal expenses, court oversight of the spending, and the funds are often required to be held in restricted depositories. Additionally, a guardianship of the property terminates when a minor child turns eighteen (18). This means the minor child receives their entire inheritance on her 18th birthday.

Many parents plan to avoid the expense of a guardianship of the property and/or want to protect their children from accessing large amounts of money at age eighteen (18). This can be accomplished by crafting a last will or revocable trust to have an additional testamentary trust built into it that would hold the minor child’s funds in trust for a longer period of time. The parents also name a trustee (individual, professional, trust company) to manage the funds and make distributions to the minor child. If assets are structured to enter a trust for a minor child, they will not be subject to guardianship. The trust can be set up to hold the funds well beyond the time the minor child reaches the age of majority and the trustee will not have to distribute the funds to the minor child until the age the parents desire. I often draft testamentary trusts that terminate at age 25, 30, or 35 to avoid an 18-year-old receiving their entire inheritance too young.

If you desire to name a preneed guardian or set up your estate plan to protect your minor child, it is recommended to discuss your options with an estate planning attorney to determine the best way to structure the estate plan to meet your specific goals.

Adverse Possession & Squatter’s Rights

By: Clark, Campbell, Lancaster & Munson, P.A.

 Q: A few years ago my neighbor put up a fence, and I think it encroaches onto my property by a few inches.  Does my neighbor have a claim for adverse possession for part of my land?

 A:  There is an old saying that possession is 9/10ths of the law, but oh what a difference 1/10th can make.  Before proceeding you should obtain an updated survey of your property by a licensed surveyor to confirm your neighbor’s fence is indeed encroaching onto your property.

In order for your neighbor to claim adverse possession of part of your land, certain requirements must be satisfied.  Adverse possession may be claimed with color of title, such as pursuant to a defective deed, or without color of title, such as with a substantial enclosure like a fence.  Moreover, the person claiming adverse possession bears the burden of proof, and adverse possession must be proven by clear and convincing evidence.

For your neighbor to claim adverse possession, your neighbor’s possession of your property must be open, notorious, exclusive, and continuous.  What constitutes open and notorious is fact intensive.  The use must be with the owner’s knowledge or so open, notorious, and visible that knowledge of the use by the neighbor is imputed to the owner.  For example, your neighbor put up a fence, started using part of your land for a garden, and tends to that garden every day.

To have a claim for adverse possession, the possession must be exclusive such that your neighbor cannot possess the property with you or the public.  However, two or more people may claim title by adverse possession of another’s property and, if successful, would take title as tenants in common.

Your neighbor would also have to show that your neighbor’s possession has been continuous, consecutive, and unbroken for a period of 7 years.  Any break in the 7-year period is fatal to the adverse possession claim.  However, in Florida, under the doctrine of tacking, an adverse possessor may add his or her period of possession to that of a prior adverse possessor to establish continuous possession for the 7-year period.   Therefore, if you had a previous neighbor who initiated the adverse possession, your current neighbor may benefit from the earlier period of adverse possession as long as the periods are consecutive, continuous, and unbroken.

However, even if your neighbor satisfies the requirements above, an adverse possessor must also pay all outstanding taxes on the portion of the property being adversely possessed for 7 years and notify the property appraiser of the adverse possession pursuant to statute, and this is usually that 1/10th difference where an adverse possession claim fails.  Once the property appraiser receives notice of adverse possession, the property appraiser is then required by law to notify the property owner of record that the property is subject to an adverse possession claim.

Therefore, if you’re concerned your neighbor might have a claim for adverse possession, you may want to be a good neighbor and kindly ask your neighbor to move his fence if your survey indicates it encroaches onto your property.  If your neighbor still refuses to move his fence, then you should consider contacting an attorney and taking legal action if you suspect your neighbor may have a claim for adverse possession.

What If A Deceased Person Owes You Money?

By Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

When a person owes you money and dies, all is not necessary lost and the funds can still be recovered at times from the deceased person’s probate estate if proper procedure is timely followed by you as the creditor.  If a person dies and has assets that are subject to probate administration, any creditor of the deceased person may prepare a written “Statement of Claim” in an attempt to recover from the deceased person’s estate.  The Statement of Claim is then filed in the probate case of the deceased person. The Statement of Claim should include the following information: the basis of the claim; the name and address of the Claimant (and their attorney, if any); the amount of the claim; when the amount is due or will become due; if the debt is contingent or unliquidated; and if the debt is/is not secured.

When a Statement of Claim is timely filed in a probate case, the person administering the probate case (or their attorney) will have to resolve the claim by either: paying the claim, objecting to the claim, paying a portion of the claim, or not paying any of the claim if the estate has insufficient assets to pay the claim. If a Statement of Claim is not timely filed, the claim will be forever barred. Therefore, it is very important to understand the legal deadlines of when creditor claims are time barred and to act fast to file a Statement of Claim when a person who owes you money dies.

What If There Is No Probate, Can I Still File A Statement of Claim?

If no one comes forward to start a probate case, a Statement of Claim cannot be filed as there is no one in place to resolve the deceased person’s debts.  However, a document known as a “Caveat” can be filed with the probate court in the county where the deceased person resided at the time of their death.  The Caveat is a written notice to the court that acts as a bookmark so that the person who filed the Caveat, known as the “Caveator”, is notified if any probate case is filed in the deceased person’s name. When a creditor files a Caveat, the Clerk of Court is required to notify the creditor if a probate case is initiated and to provide the creditor with contact information for the person who initiated the probate proceedings.  Generally, after a creditor is notified of a probate case being opened, at that time, the Statement of Claim would then be prepared and filed in the probate case by the Caveator.

A Caveat is not just for creditors but also can be used by any interested person who is apprehensive that a probate case will be administered without their knowledge or any family member of the deceased person who is concerned they will not be notified by the rest of the family when a probate proceeding occurs.

If a deceased person owes you money, it is recommended to discuss your options with a probate attorney to determine whether it makes sense to file a Statement of Claim or Caveat and whether it is likely you would be able to recover from the deceased person’s estate.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

When does a gathering of directors result in a homeowner’s association Board meeting?

By: Dan Rich, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Some of the most frequent questions I face in my representation of homeowner’s associations, or “HOA’s”, relate to whether a gathering of directors is considered a “Board meeting” that must comply with the formalities outlined in Chapter 720, Florida Statutes. These questions usually arise when unit owners complain that the Board is conducting business behind closed doors at meetings that were not properly noticed. In an effort to help both HOA Boards and unit owners better understand the legal definition of a “Board meeting” and its ramifications, I address some of the most common questions I receive below.

What is the legal standard for a HOA Board meeting? Section 720.303(2)(a), Florida Statutes, defines a Board meeting as any gathering for the purpose of conducting association business by the members of the Board of Directors at which a quorum is present. Typically, an HOA’s governing documents will specifically define what number of directors constitutes a “quorum”; however, the general rule of thumb is a majority of the members of the Board constitutes a quorum. Board meetings at which association business is conducted must be open to all unit owners, and proper advance notice of the meeting also must be provided to the unit owners, except in limited cases of emergency.

Can a HOA Board hold private meetings? Florida law provides two (2) limited exemptions to the above-referenced requirement to hold open Board meetings. Currently, unit owners can be restricted from attending Board meetings only when the Board is meeting with the HOA’s attorney to discuss proposed or pending litigation or the Board is meeting for the purpose of discussing personnel matters. Please note that in order to satisfy the attorney exemption, listed above, the HOA’s attorney must be present either in person or via telephone.

Can the Board restrict member participation at an “open” Board meeting? Chapter 720, Florida Statutes, expressly provides that unit owners are allowed to speak on all agenda items during a Board meeting; however, Florida law also permits HOA’s to adopt rules that regulate unit owner participation. Typical rules may restrict the amount of time that a unit owner can speak on any given agenda item (i.e., three minutes per agenda item), or provide that no unit owner may speak more than once until all other unit owners have had an opportunity to do so. Once rules are established, consistent enforcement of said rules is crucial even if it means using a watch, cell phone timer or gavel.

Can HOA directors ever get together to socialize? It is not illegal for directors constituting a quorum to socialize while limiting the conversation to the weather, the news or sharing photos of each other’s recent vacations – i.e., non-association business. However, directors must be aware that a gathering of a quorum of members of the Board – even at a purely social event– creates the risk that a disgruntled unit owner might accuse the Board members of improperly conducting a Board meeting in violation of Chapter 720.

To summarize, Chapter 720 does not prevent Board members from socializing or require that a notice must be posted every time a group of Board members might want to go out to eat or play a round of golf. Instead, the law simply provides that a gathering of a quorum of Board members whereat the Board members discuss HOA business or engage in discussions about the needs of the community must occur only in a properly-noticed Board meeting.

The above questions are only examples and are not intended to address all potential scenarios. Therefore, if you have a specific question, you should consult an attorney who has particularized knowledge regarding this aspect of HOA law.

Dan Rich is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Litigation

Social Media and Your Case

By: J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

In the United States some eighty-one percent of people have some form of a social media profile. Social media is a great way to share your life with friends but it is increasingly becoming a source of evidence in legal proceedings. It is not uncommon to see that a Facebook post was the reason for the apprehension of a criminal suspect but social media is also playing a large role in civil litigation.

Gathering the Evidence
The first mechanism an attorney or investigator may use in attempting to gather social media evidence is by simply searching the individuals name. Many people do not have their social media profiles set to private which allows for a simple search of the individuals name on the leading social media websites to lead to a wealth of personal information including information that may be damaging to your case.

However, many individuals do have some level of privacy enabled on their social media accounts. In this case profiles can still be exposed by sharing content with friends who do not have strong privacy settings or through the ordinary means of discovery in a lawsuit.

In a civil proceeding, a party may obtain discovery regarding any matter that is relevant to the lawsuit, as long as such information is not protected by some form of privilege. Florida courts have already held that pictures from Facebook and other social media postings are discoverable in lawsuits. This is even true if the individual has enacted the strictest of privacy settings. Courts in Florida have effectively acknowledged that one who creates a social media account accepts that their personal information will be shared with others regardless of the user’s privacy settings.

Authenticating the Evidence
In court proceedings, it is one thing to gather the evidence and another thing to get that evidence admitted into a proceeding to be used by the judge or jury to render a decision. While discovery allows for broad requests of information, admitting a social media post at a proceeding must meet a more exacting standard.

In order for any evidence to be admitted, including social media posts, the evidence must be authenticated. The courts want to be as certain as possible that what is being admitted is not a forgery or altered in any way. This is usually done through a series of questions to a witness which include how the post was copied or saved from the website, who made the post, and who has personal knowledge that a certain individual made the post. These questions can address any other identifying features of the proposed social media evidence. Additionally, Florida courts have begun to allow expert witnesses such as internet consultants to assist in the authentication of website evidence.

Protecting your Information
The first thing everyone should do in order to better protect social media information is to make sure you take advantage of the privacy features offered by the service itself. Just as important as your own privacy settings, it is also important to ensure that those who you share information with also have strict privacy settings activated.

However, as previously explained privacy settings will not protect your information from discovery requests. The only way to truly prevent a social media post form being used as evidence is to not make the post. If you are posting something that is related or could be related to a lawsuit ask yourself if you would want the picture or post to be seen by a judge or jury. If the answer is no, do not post it. While we all want to share our lives with our friends and family, if for example you have a pending personal injury matter, the insurance company would likely be very interested in your vacation pictures as well.

Finally, once something is posted on the internet it is never really deleted as archives of the internet are being continuously made which take snapshots of the internet at certain times. So even if your post is deleted it is likely archived and may still be discoverable.

J. Matthew Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Know Your Contractor Before You Hire

By Clark, Campbell, Lancaster & Munson, P.A. 

Q: I was thinking about hiring a contractor to do some work on my house, but I’ve heard horror stories about unlicensed contractors doing shoddy work and running off before the work is finished. What can I do to protect myself?

A: A “contractor” is any person who constructs, repairs, alters, remodels, adds to, demolishes, subtracts from, or improves any building or structure for compensation, including related improvements to real estate. For example, you’ll need a licensed contractor if your remodel entails the alteration or replacement of a load-bearing wall for compensation, but a person doesn’t need to be licensed to paint or install cabinets, wood/tile flooring, or insulation regardless of compensation.

If the work being done to your home requires a licensed contractor, your first step should be to verify your contractor is licensed to do the particular work. All licensed contractors are regulated by the Florida Department of Business and Professional Regulation (DBPR). You should verify your contractor’s license by going to www.myfloridalicense.com/dbpr and clicking on the Verify a License tab. You may search using the contractor’s name or license number, or you may search by license type or do a general city or county search. You may also call the DBPR Customer Contact Center at (850) 487-1395 to verify your contractor’s license is active. Ask your contractor for references to verify and check your contractor’s previous work.

There’s a difference between whether a contractor is “certified” or “registered.” A “certified” contractor is licensed by the State of Florida and may operate in any city or county in Florida. A “registered” contractor is licensed by a particular city or county after taking and passing a local competency examination and may operate only in the city or county of registration and any other neighboring locales which accept the contractor’s registration.

The Construction Industry Licensing Board licenses individuals for construction work, and the Electrical Contractors’ Licensing Board licenses individuals for electrical work. If you discover your contractor isn’t licensed, you can report the unlicensed activity by calling the Unlicensed Activity (ULA) Hotline at (866) 532-1440 or emailing ULA@myfloridalicense.com.

Licensed contractors are authorized to perform work only within the scope of their license. Some of the different license categories include, but are not limited to, the following:

  • Air conditioning
  • Building
  • General
  • Mechanical
  • Plumbing
  • Pool/spa
  • Roofing
  • Solar.

You should also make sure your contractor carries all required insurance. In order to receive a general contractor’s license in the State of Florida, a general contractor must carry minimum general liability insurance of $300,000 for bodily injury and $50,000 for property damage. All other categories must maintain a minimum of $100,000 liability and $25,000 for property damage, or in amounts as defined by the Board. Ask your contractor for a copy of their Certificate of Insurance showing at least these minimum insurance coverages as well as workers’ compensation insurance before your contractor commences any work on your property.

Be aware that commercial general liability insurance policies do not insure the contractor against defective workmanship or work incorporating defective products or materials. Also, most homeowners’ insurance policies won’t provide coverage for damage to your home caused by defective workmanship.

There are many different forms of contracts used by contractors, and they’re typically written from a contractor’s perspective instead of a homeowner’ s perspective. Therefore, you should have an attorney review your construction contract before you sign to ensure you’re protected.

Loved one is now deceased, what should we do?

By: Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

As an estate planning and probate attorney, I often encounter the following question… What happens to my remains when I die? Usually, this question causes little or no concern to me as the majority of families agree on funeral, burial, and/or cremation plans for their loved one and will honor the wishes provided by the deceased person for the final resting place. However, occasionally there is a family dispute over what the deceased person intended for their final resting place or which person should get possession of the deceased person’s remains.

A person generally devises their property at death by using a Last Will and Testament or a Revocable Living Trust. Administering a probate or a trust disposes of the deceased person’s property. However, a deceased person’s bodily remains are not considered property under Florida law and bodily remains cannot be disposed by Last Will and Testament. Often times, a person will express their intent to their family and friends regarding their wishes for burial or cremation and sometimes that intent is written down or included in a Last Will and Testament. An intent shown in a Last Will and Testament (or other writing) for disposition of a person’s bodily remains generally should be honored. Any dispute over a deceased person’s bodily remains shall be resolved by a court of competent jurisdiction (often the county where the deceased person resided at time of death).

The person in charge of coordinating the funeral, burial, or cremation plans of a deceased person is the legally authorized person under Florida law. There is a priority ranking system to determine which person has the authority to plan funeral, burial, and cremation services and the order goes as follows:

1. Deceased person’s written direction
2. A person appointed in written military directive
3. The surviving spouse (except in limited circumstances such as domestic violence)
4. An adult child
5. Deceased person’s parent
6. An adult sibling
7. An adult grandchild
8. A grandparent
9. Other relative

Therefore, if a deceased person has provided written instructions regarding funeral, burial, or cremation, those wishes should be honored by the family. If no instructions were left behind, you would follow the priority rankings above to see who the legally authorized person should be to make decisions for the deceased person’s bodily remains. If the person with highest priority chooses not to help coordinate the arrangements, then the next person listed in the priority rankings will often make those decisions. The funeral establishment is required to rely upon the authorization of any one legally authorized person of that class if the person represents that she or he is not aware of any objection to the disposition of the deceased person’s bodily remains by others in the same class of the person making the representation or of any person in a higher priority class.

Additionally, the legally authorized person is not required to use their own resources to personally pay for the deceased person’s funeral, burial, or cremation and often times the deceased person will have prepaid for the arrangements during their lifetime. If there were no prepaid arrangements made by the deceased person, the family often decides to pay for the costs out of their own resources.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

POST-HURRICANE ADVICE ON TREE LIABILITY IN FLORIDA

By. Dan Rich
Clark, Campbell, Lancaster & Munson, P.A.

As relief efforts remain ongoing, it is evident that hurricane Irma has had a very drastic effect on our local community, with one of the largest impacts being the massive amount of downed trees and vegetation that have been strewn across our community. We all are aware of the dangers of fallen trees; however, in the wake of Irma I thought it would also be helpful to answer some basic legal questions associated with trees, shrubs and vegetation and the liabilities associated with the same.

Can I trim my neighbor’s tree branches if they are growing into my yard? Yes, a landowner has the legal right to trim branches and limbs that extend into their property line. However, Florida law only allows tree trimming up to your property line, and trimming is prohibited if: (i) the trimming requires access to the neighbor’s property; or (ii) the trimming itself will destroy the tree.

A large tree mainly hangs over into my yard, but the trunk is in my neighbor’s yard. Who owns the tree? Your neighbor owns the tree. Currently, the law provides that as long as the tree trunk is wholly in the neighbor’s yard, said tree belongs to the neighbor. But, when the tree trunk is divided by the property lines of two or more people, Florida law refers to the tree as a “boundary tree.” Under a “boundary tree” scenario, all of the associated property owners own the tree and share equal responsibility for it. Removal of a “boundary tree” without the unanimous consent of all owners is unlawful.

Irma knocked down my neighbor’s tree limb onto my property, damaging my house – is my neighbor responsible for the damage? Maybe. Based on current case law, if a lawsuit was brought to recover the damages the court would apply what is called the “reasonable care standard.” Essentially, if your neighbor took reasonable care to maintain the limb, and if a reasonable person would conclude that the limb was not threatening to fall, then the neighbor would more than likely not be liable for any damages. However, if after applying the “reasonable care standard” the court finds that a reasonable person would have or should have known that the tree limb posed a danger of falling, or that the neighbor never did reasonable inspections to maintain the limb, then the neighbor may be liable for negligence, and in turn responsible for the damages to your property.

My neighbor’s tree looks like it’s about to fall, what can I do? As provided above, landowners are responsible for maintaining the trees located on their property. Legally, this creates two duties: (a) conduct reasonable inspections of the trees; and (b) take care to ensure tree safety. Hence, if a neighbor conducts a tree inspection and a branch or the tree itself is objectively determined to be dangerous, then they are responsible for its removal. If the neighbor does nothing and the tree does in fact cause damage, your neighbor can in turn be held liable.

Does the City of Lakeland have any laws in place regarding tree removal? Yes, the City of Lakeland currently deems it unlawful if a landowner: (i) plants a tree, shrub or vegetation within 30 feet of any easement or public way where City sewers are located; (ii) maintains a tree, shrub or vegetation that obstructs the view of any driver of any vehicle on City streets; or (iii) permits a tree, shrub or vegetation to grow to within five feet of any electrical wire that carries 110 volts or more. If one of the above obstructions is observed, the City will provide the owner with time to remedy the violation on their own, then if nothing is achieved the City has the legal authority to step in and remove the tree, if necessary.

Lastly, in 2013 the City of Lakeland passed an amendment to its Land Development Code that essentially prohibits commercial development sites, and newly constructed residential subdivisions from removing certain protected trees. Some examples of these protected trees include Pecan, Sugarberry, Camphor, Sweetgum, Sycamore and Live Oak trees. For an exhaustive list of the trees, please review Table 4.5-6 of Lakeland’s Land Development Code.

As Lakeland fights hard to stand up on its feet again, it is hoped that the information provided herein clears up any questions you may have had about the liabilities associated with trees and other forms of vegetation. It is recognized that the above questions may not address all concerns, and if you have a specific question you are urged to consult an attorney who has particularized knowledge regarding this aspect of property law.

Litigation

Is an oral contract binding?

By:  J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Many individuals today still conduct business or enter into agreements with handshake deals or oral statements. Generally speaking, oral contracts are enforceable in Florida. However, there are some exceptions which make certain oral contracts unenforceable.

Was a contract formed?

The first question that needs to be answered when addressing whether an oral contract is enforceable is – was a contract formed?

An oral contract is formed when (1) an offer is made, (2) the offer is accepted by the other party, (3) the offer and acceptance are supported by consideration, and (4) essential terms of the agreement are specified.

An example of a basic oral contract is as follows:

John Smith verbally offers to mow Jane Doe’s lawn tomorrow for $100. Jane Doe thinking this is a great deal accepts this offer by verbally stating to John Smith that she accepts the offer.

John Smith and Jane Doe have entered into an enforceable oral contract. John Smith made an offer to Jane Doe. Jane Doe accepted this offer by orally communicating affirmation. Legal consideration is generally something bargained for and received as part of the agreement. Consideration can include property, money, a return promise, an act, or even forbearance from an act. In this example, the consideration is the $100 which Jane Doe promised to pay to John Smith in order to induce him to take the action of mowing her lawn. Finally, it is not necessary that all terms be identified but that essential terms be defined so that each party understands what is expected of them under the agreement. Here, the essential terms are present – actions to be taken, amount of payment, location, and time of performance.

This is a simple example of an oral contract; however, oral contracts can be created and enforceable for far more complex transactions – such as the loaning of substantial sums of money, construction, or even the sale of a business.

When are oral agreements not enforceable?

Some common transactions which must be in writing are as follows: any contract for the sale of land or real estate, any lease lasting longer than one year, any agreement that cannot be performed within one year, an agreement that is not to be performed within one year, agreements to pay the debts of another, and agreements for sale of goods valued at $500.00 or more.

While oral contracts are generally enforceable in Florida, it is recommended that any agreement be put into writing and signed by the parties involved to ensure that that expectations and requirements of the parties are clear and can be specifically recalled in the event of a dispute. It is recommended that you have an experienced attorney review any agreements before they are entered into. Having an attorney review contracts prior to execution can help the parties avoid future problems and future expenses. Finally, if you face a situation where you need to enforce an oral or written contract, or someone is seeking to enforce a contract against you, seek immediate legal assistance from an experienced contracts litigation attorney.

Matt Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland.  Questions can be submitted to thelaw@cclmlaw.com.