What happens when nobody wants to serve on an association’s board of directors?

By. Dan Rich

Serving on a homeowner association, or HOA, board of directors is a thankless job that often fails to receive the recognition it rightfully deserves. Sadly, communities sometimes experience a dilemma where the old board members have served to their term limit and no other volunteers are interested in stepping up to the plate to volunteer their time and effort as a replacement board member. This creates two legal issues, the first is whether the old “termed out” board members can stay on the board as well as what happens if nobody is willing to serve on the HOA board moving forward.

Under Florida law, HOA directors are entitled to serve for their term and until their successor is duly elected (Emphasis added). Essentially, what this means is that if no new directors are willing to volunteer Florida law permits those people who are already on the board to continue to serve until a replacement steps forward to take their position. With that being said, you may be asking yourself whether that means that an existing board member is ever able to resign or step down from their position as a board member? The answer is yes, any board member at any time can express their intent to resign as a director and/or an officer but said resignation may not be without consequences because a HOA board needs officers and a quorum to conduct day-to-day business.

The definition of a “quorum” will change depending on the language of your governing documents, but the most common quorum definition is generally fifty-one percent (51%) director participation. For example, if an association is made up of a five-member board, a quorum would only be established after three of the board members decided to act. Failure to have enough directors to meet the definition of a quorum under your governing documents will prevent the HOA from being able to hold meetings and conduct meaningful business; however, resignations can also have a grave impact if the person stepping down is not only a director, but also an officer.

Officers of the board include the President, Secretary, Treasurer and sometimes Vice-President. The roles and duties of those offices are generally outlined in your association’s governing documents and provide each officer with certain abilities and powers. If a director, who is also an officer, decides to resign from the board not only will said resignation impact the ability to establish a quorum, but the vacancy may also impact the association’s ability to sign checks to pay third parties, access the HOA’s bank account or to enter into contracts with vendors and other providers.

Up to this point all scenarios have assumed that at least one director is willing to serve on the board, but what happens when all directors have resigned and nobody is willing to replace them? Section 720.3053, Florida Statutes, provides that “if an association fails to fill vacancies on the board of directors sufficient to constitute a quorum in accordance with the bylaws, any member may give notice of the member’s intent to apply to the circuit court within whose jurisdiction the association lies for the appointment of a receiver to manage the affairs of the association.”

There is a particular form for the notice, which is provided in Section 720.3053, that states that the petition to the court will not be filed if the necessary vacancies to establish a quorum are filled with thirty (30) days after the notice is posted or transmitted to all owners. The Florida legislature added this provision in hopes that the notice will conjure up enough volunteers willing to serve on the board to prevent the appointment of a receiver. If the 30 day window expires and nobody steps forward, the member who transmitted the notice can then petition the court for a receiver to run the association.

Unlike customary directors who take the position without compensation, Section 720.3053, provides that the receiver is entitled to receive a salary and reimbursement of all costs and attorneys’ fees payable from association funds. It also goes on to say that the “association shall be responsible for the salary of the receiver, court costs and attorneys’ fees.”

The difference between “free” volunteer directors and paid receivers with their accompanying fees can be a large number that has a drastic impact on the reserves of an HOA. Monies reserved for common area maintenance, repairs and just general upkeep could be directed to pay the receiver’s salary to run your community. Using association funds to pay a receiver is never a good idea as funds being diverted away from general upkeep and repairs will inevitably take a visible toll on your community. To prevent receivership from happening, I would encourage everyone who lives in a HOA and is even slightly pondering volunteering as a director to strongly consider stepping up and serving as a director the next time your community has an election. Your participation may have a greater impact than you ever realized before!

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.

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.

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.

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.


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.

Dissension in the Ranks: The Basics Surrounding HOA Election Challenges

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

Few things generate more animosity and drama within a homeowners association, or HOA, than contested board of director elections. This tension may result in residents seeking legal action against the HOA in the form of an election contest. Sadly, most HOA residents have zero clue about the rules regarding an election contest; however, this article will hopefully shed some light on the basics surrounding HOA election contests in Florida.

So where do we begin? Florida law states that any election dispute or challenge in the homeowners association context must be submitted to mandatory arbitration with the Florida Department of Business and Professional Regulation, or DBPR.
The window for submitting an election contest is not open for long. Instead, Florida law provides that any person who wishes to challenge an HOA election must file their petition for arbitration with DBPR within 60 days of the election results being announced. The announcement almost always occurs at the election itself, which means that the clock starts ticking the second the meeting concludes.

Florida law goes on to provide that prior to filing an arbitration petition with DBPR, the resident must also provide his or her HOA with the following: (a) advanced written notice of the specifics regarding the dispute; (b) a written demand for relief, and a reasonable time for the HOA to provide said relief; and (c) notice of the resident’s intent to file an arbitration petition in the absence of a resolution. If the resident fails to comply with these three requirements, then DBPR will be forced to dismiss the election challenge.
Often times, the “written notice of the specifics regarding the dispute” is initially founded upon rumors, hearsay and mere hunches. To avoid basing your HOA election challenge on speculation, it is generally recommended that the disgruntled resident investigate the accuracy of the information prior to filing the arbitration petition with DBPR.

You may be asking yourself, why should I take the time to investigate? This answer is simple. Florida law provides that the prevailing party in a DBPR election contest is entitled to recover from the losing party all of his or her attorneys’ fees and costs.
To minimize this risk, Florida law provides that any resident of a HOA can inspect the official records of the association. Florida law mandates that election materials, such as ballots, proxies and the sign-in sheet be preserved for inspection by residents who request to review the documentation. Once a request is submitted the HOA must make all requested materials available within 10 days. Then, the requestor must take time to review the documents, which often times requires a time commitment based on the sheer amount of papers involved.

The importance of confirming the basis for any election challenge is imperative, but it narrows the 60-day timeframe that a resident has to file their petition. Therefore, that is why I recommend that

a resident seeking to challenge an HOA election, or an HOA facing an election challenge itself,
seek the advice of a knowledgeable attorney who can help navigate the complexities of an election
challenge under Florida 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.

Code Enforcement Liens

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

Q: A code inspector recently notified me about a code violation concerning my property. What is the process of enforcing a code violation?

A: Chapter 162 of Florida Statutes sets forth the various ways in which a local government body, such as a city, can enforce code violations, such as by imposing a fine which may continue to accrue on a daily basis. A code enforcement board is usually comprised of 7 members with 2 alternate members and should include an architect, businessperson, engineer, general contractor, subcontractor, and realtor.

The process usually starts with a disgruntled neighbor calling code enforcement, and a code inspector initiates the investigation. If a violation is found, the code inspector is required by law to notify the violator, and the code inspector is required to give the violator a reasonable time to correct the violation, unless the violation presents a serious threat to public health, safety, and welfare or if the violation is irreparable or irreversible in nature.

Typical code enforcement violations may include, but are not necessarily limited to, noxious odors or fumes emanating from your property, neglecting to mow your lawn, failing to secure buildings, parking derelict vehicles, failing to remove debris, placing improper signage, and possessing certain farm animals within city limits on your property.

If the violation continues beyond the time specified for correction, the code inspector notifies the enforcement board and requests a hearing. Notably, if a repeat violation is found, the code inspector is required to notify the violator but is not required to give the violator a reasonable time to correct the violation.

After the hearing, the code enforcement board is required to issue findings of fact based on evidence and law, and the code enforcement board issues an order. If the code enforcement board imposes a fine and the violator does not pay the fine by a certain date, the local government body may record in the public records a certified copy of an order imposing the fine.

The recorded order then becomes a lien against the land on which the violation exists and notably upon any other real or personal property owned by the violator. Therefore, if you have a code enforcement lien against Property A which you own and desire to sell Property B which is not in violation but located in the same county, technically the code enforcement lien attaches to Property B, unless Property B is your homestead. Furthermore, a code enforcement lien held by a municipal or county governmental unit survives issuance of a tax deed unless satisfied of record or otherwise barred by law.

If the code enforcement lien is not paid within 3 months after the date of recording, the local government body may foreclose on the lien or sue to recover a money judgment for the amount of the lien plus accrued interest, and a local government body, such as a city, has 20 years from the date of recording of the code enforcement lien in the public records to file its foreclosure lawsuit.

Common Areas and the Role That Your Association Can Play in Prohibiting Guest Access

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

Q: Can my homeowners’ association prohibit guests from using the clubhouse or swimming pool?

A: November brings with it crisp air, the smell of turkey, and jokes about how the palm trees never lose their leaves. However, November also means that many people will start flocking to their Florida residences to escape the frigid north.

In many instances, these homes are in residential communities controlled by a homeowners’ or condominium association.  Among other things, associations are responsible for the management of common areas within the community.  Under Florida law, a common area is defined as all real property within a community that is owned or leased by the governing association.  Examples of common recreational areas include tennis courts, clubhouses and swimming pools.

The only way to know exactly what rules apply to the use of such common areas is to review the applicable provisions of your community’s governing documents regarding guests and visitors.  The governing documents (which usually include a Declaration of Covenants Conditions and Restrictions, Declaration of Condominium and Rules and Regulations) are where you should look first to determine what rights your guests and visitors have to use any common recreational areas.  Some associations may limit use of common recreational areas to homeowners or unit owners and prohibit guests’ usage altogether. Other associations might allow guests to use common recreational areas only if accompanied by a homeowner or unit owner.  Some associations may allow non-owners to use the common recreational areas only after obtaining a guest pass or signing into a log book.

Florida’s warm weather offers the ability to escape the cold Northern weather and enjoy outdoor recreational areas during winter months.  However, before planning your next pool party, it is advisable to consult your community’s governing documents in order to know how many people you can include on your guest list.

The December 1st edition of “The Law” will cover proactive planning for senior Medicaid Programs.

Questions can be submitted online to thelaw@cclmlaw.com

HOA Assessments when HOA Forecloses

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

Q: Can a homeowner’s association foreclose on me even when I have a mortgage?

A: Yes.  One issue that I address in any community association law seminar or consultation with an association is assessment delinquency.  Most associations have at least a few owners who are delinquent, and some owners remain in default for years without any consequence other than a few demand letters.  The reason is usually financial.  The association might think it is simply not worth fronting the attorney fees for an enforcement action.  The legal cost and effort is of particularly questionable value when the property still has a mortgage, often in default, because the lender may have the superior right to come in and foreclose on the property at any time.  If the lender does not foreclose, the mortgage may stay in place and make the property unmarketable even if the association obtains the property by its own foreclosure.

Even so, associations should consider foreclosures under the right circumstances.  First, an association’s failure to enforce its own covenants, or its selective enforcement of the rules, opens the door in future lawsuits as to the validity of those rules.  (My colleague Kyle Jensen covered the concept of selective enforcement in the December 17, 2015 edition of this column.)  Second, while the association waits around for the lender to foreclose, the only loser is the association.  The owner enjoys the delay, often resulting in free housing, but the association continues to rack up delinquent assessments.  Under many circumstances, the bank will eventually take title, and the association will recover from the bank only a year of assessments, even if there are several years of delinquency.

If the association proceeds to foreclose on the property, one of three things will typically happen.  The bank might be motivated to foreclose, thereby curing the delay.  The association might get lucky and get a third party to buy the property at the foreclosure sale, thereby ensuring that the association gets paid for its claim.  Or the association might take title to the property subject to the mortgage.  The benefit here is that the association can begin to rent out the property and start to recover some of its losses from those rents while it awaits the lender’s foreclosure.  In certain circumstances, the association might even find it worthwhile to negotiate with the lender as to the proper resolution of the mortgage and debt.  For example, an association might be in a better (or more motivated) position to negotiate a short sale of the property to eliminate the mortgage and get the property into the hands of owners who will pay their bills.

Whether the association sells the property or the property goes to a new owner via the mortgage foreclosure sale process, the next owner is typically liable to the association for the assessments that accrued while the association held title in the property.  In reality, however, these amounts are not often recovered, because the association will usually feel forced to waive those past assessments so that a paying owner will get into the property and “stop the bleeding.”

The July 28th edition of “The Law” will cover the bike laws to keep you safe this summer.

Questions can be submitted online to thelaw@cclmlaw.com

99-Year Leases and Property Tax

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

 Q: When does a tenant become an owner for tax purposes?

 A: I “own” a condominium on unit on the east side of Santa Rosa Island in the Florida Panhandle, but I do not actually hold a deed.  Instead, because the island is county land leased to developers under 99-year master leases, I am the assignee of a lease to the unit.  Similarly, Island Resorts Investments, Inc., was subject to a sublease under one of these lengthy master leases on the west side of the island.  The developer brought a lawsuit against the county tax collector when the county started imposing property taxes on the tenant.  The developer argued that it was a tenant not subject to real estate taxes.  A trial court sided with the tax collector, but on appeal a panel of judges held that, primarily because the sublease agreement did not allow for the developer to either get automatic lease renewals or get a deed for a nominal price, the tenant did not have the sort of perpetual dominion rights typical of an owner.

The tax collector has vowed that the fight is not over, and a Florida Supreme Court ruling may be forthcoming, but the case raises questions of when a tenant can be a so-called “equitable owner.”  To understand why this is even a question, it is important to know that lawyers and courts consider ownership as a “bundle of rights,” and someone can have all or some of those rights.  You can have a right to exclusive dominion of a property, for example, but not the right to build on the land.  Or you can have the right to build but must turn over all improvements to another owner once you stop using the property for a specified purpose, upon the expiration of a specified term, or even upon a specified person’s death.  You may or may not have the right to sell or sublease the property you occupy.  If you have the entire bundle of rights, you are obviously the “owner” in all senses.  But if you have only some of the rights, the question arises as to what your responsibilities are, including as to real estate taxes.

In Florida, to be deemed an equitable owner for such tax purposes, a tenant must hold virtually all of the benefits and burdens of ownership, including the obligations to insure, maintain, and pay taxes (according to the lease).  Although these obligations are common in commercial leases, the key piece that makes equitable ownership uncommon is that the lease must either be perpetual or allow for the tenant to purchase the land for nominal value.  On the face of this rule, a lease with a purchase option could fall into this definition if the eventual purchase price is small enough.  Generally speaking, however, if the tenant’s right to occupy the property can be taken away at the option of the landlord or other legal owner at any time or at a specified time, as is the case in virtually all residential leases and most commercial leases, the tenant will not be an equitable owner with responsibilities directly to the state for property taxes.  Even if the tenant is not responsible to the government, however, the lease may require the tenant to pay the taxes, and the tenant must comply with his obligations under the lease.

Negotiating a lease and understanding your rights and responsibilities, including those not specifically set forth in the written agreement, should not be taken lightly.  Legal counsel can assist in the event a tenant or landlord has concerns over a residential, commercial, or land agreement.

The June 30th edition of “The Law” will cover the new collaborative law procedures for Florida family law cases and how the same concepts can be applied in business disputes.

Questions can be submitted online to thelaw@cclmlaw.com