To Survey or Not To Survey

By: Kyle Jensen, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Q: Should I obtain a survey for real property I am purchasing?

There are many issues a buyer must consider and pitfalls a buyer must avoid when purchasing real property, regardless of whether the buyer is acquiring a large commercial center or the buyer’s first home. Accordingly, an experienced buyer will thoroughly investigate prospective real property to determine whether such real property is suitable for the buyer’s intended purposes. One of the most important steps buyers often take when investigating real property is to obtain a survey.

A survey of real property is, in part, a depiction of the real property that portrays its boundary lines and dimensions and all of the improvements, easements, and other attributes located within the real property. The survey allows the buyer to, among other things, confirm the actual boundaries and dimensions of the real property, confirm none of the neighboring properties’ improvements encroach upon the real property, and confirm none of the improvements located on the real property encroach upon any easements or encroach into any adjacent property.

Once a survey is obtained, the buyer should thoroughly review the survey, with the assistance of a knowledgeable real estate attorney if possible, to determine there are no major defects on the real property, and that the real property is suitable for the buyer’s intended uses. For example, if a buyer purchases a residential home with the intention of constructing a porch on the back of the home, the buyer should confirm there are no easements or other encumbrances running behind the home that would prevent the buyer from constructing such porch; or if a buyer purchases a commercial property within a busy commercial center, the buyer should confirm none of the improvements located within the real property, such as the building sign, encroach upon the adjacent property.

The failure to obtain, or thoroughly inspect, a survey of real property can cause significant problems for the buyer after closing. In the examples above, the buyer of the residential property may be prohibited from constructing a porch in his or her back yard because the buyer failed to discover a utility easement in favor of a local utility company running behind the home; or the buyer of the commercial property may be required to demolish and rebuild its sign because it failed to discover the sign was actually located on adjacent property.

Therefore, while it may be tempting for a buyer to forego obtaining a survey in an attempt to save money, failure to obtain a survey can actually cost a buyer money in the long run, and, in the most severe of situations, may result in the buyer being unable to utilize the real property for the buyer’s intended purposes.

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

The Basics Surrounding Homeowners Association Turnovers.

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

One of the most important events a homeowners association will face is its “turnover” or “transition” from the developer of the community to the unit owners. Despite the importance of a turnover, what I’ve found is that many unit owners are unaware of the basics surrounding a homeowners association’s transition. This article is intended to serve as an overview of the transition process for homeowners associations and developers that may be undergoing the process, are on the verge of a transition, or who just want to educate themselves on what a proper turnover entails.

“Transition” or “turnover” of any homeowners association means that the unit owners of the association, as opposed to the developer, are now entitled to elect at least a majority of the members of the association’s board of directors. This is a huge step for any association, as the board of directors, or board, serve as the voice of all unit owners while also conducting the day-to-day affairs of the association. For homeowners associations, the turnover process is governed by Section 720.307, Florida Statutes. Section 720.307 provides that a turnover is triggered upon any one of the following six events occurring:

  1. Ninety percent (90%) of the parcels in all phases of the association have been purchased, in which case turnover must occur within three (3) months of the developer reaching the 90% sale threshold;
  2. Some other percentage of parcels have been purchased, a certain “triggering” event has occurred, or a specified date has been reached, as particularly specified in the association’s governing documents;
  3. The developer abandons its responsibilities to maintain and complete the amenities or infrastructure as disclosed in the association’s governing documents;
  4. The developer files for Chapter 7 bankruptcy;
  5. The developer loses title to the association property via foreclosure or a deed in lieu of foreclosure, unless the subsequent owner has accepted an assignment of the developer’s rights and responsibilities; and
  6. A receiver is appointed by a circuit court judge for longer than thirty (30) days, unless the court determines that the transfer of control would be detrimental to the homeowners association;

Upon the occurrence of any of the above triggering events, unit owners, other than the developer, are legally entitled to elect at least a majority of the association’s board. However, so long as the developer is still holding for sale at least five percent (5%) of the association’s parcels, the developer remains entitled to elect at least one member onto the association’s board.

Section 720.307 goes on to provide that once unit owners have had the association turned over to them, the developer must also “turnover” all of the association’s documents to the association. These documents include, but are not limited to, the original recorded declaration of covenants, a certified copy of the association’s articles of incorporation, a copy of the bylaws, the minute books, financial records (more on this below), bank accounts and statements, personal property of the association (i.e. indoor and outdoor furniture, office equipment, computers), and all of the construction plans and specifications, which must include a list of the names, addresses and telephone numbers of all contractors, sub-contractors, or others in the current employ of the association. The developer is also required to provide unit owners with copies of all insurance policies, certificates of occupancy, permits, warranties, unit owner roster, and all of the contracts that the developer controlled association may have executed for services such as cable, telephone, security and other services.

Importantly, for all homeowners associations incorporated after December 31, 2007, the financial records that the developer must provide to the unit owner controlled association must be audited by a certified public accountant. Additionally, the audit must cover the time from incorporation up and until turnover, or the time span from the most recent audit to turnover, if an audit has been performed for each year since inception. The purpose of these stringent audit requirements is to allow the unit owner controlled association to determine whether all expenditures were made for association purposes, and to also determine if the billings, cash receipts and related records reflect whether the developer was charged, and in turn paid, the proper amount of assessments.

Hopefully this step-by-step analysis will help prepare developers and unit owners facing a “transition” or “turnover” of their association. However, if the procedures – as outlined above – are not followed properly, it can result in expensive legal exposure that ultimately could have adverse effects for the association, its finances, and its unit owners. This is why you, as a developer or interested unit owner, or your association, should strongly consider consulting an attorney who is knowledgeable in Florida community association law for guidance on the appropriate turnover procedure for your specific association.

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.

Enforcing community association rules by imposing fines.

By Dan Rich

One of the most common challenges for community associations is how to effectively enforce association rules against residents who repeatedly violate them. To start, it is important that the rules and regulations, as set forth in a community’s governing documents, be enforced consistently for each and every member, director, officer and resident or else the rules may be rendered unenforceable over time. If a community is faced with a repeat violator who has no intent of complying with the community’s rules, one of the most effective tools an association can use is to impose fines against the violator.
As of 2015, Florida law allows both homeowners and condominium associations to impose fines against members, tenants, guests and invitees who violate a community’s declaration of covenants, articles of incorporation, bylaws or any rules adopted by the association. For both homeowners and condominium associations, Florida statutory law provides that fines may not exceed $100.00 per violation, and that the fines may be imposed for each day that a violation continues, with the statutory mandate that fines cannot exceed $1,000.00, in total, per violation.

It is imperative that an association follow the statutory procedures as they are specifically outlined in Chapters 719 and 720, in order to impose fines at a later date. The steps necessary for imposing a fine are summarized below:

  • Step One. Establish a fining committee: An association’s board of directors must appoint an independent committee, often called the “fining committee” or “compliance committee” as its first step towards imposing fines. Fining committee members cannot be officers, directors, or employees of the association, nor can they be a spouse, parent, child, brother or sister of an officer, director or employee. The homeowner association statute requires a minimum of three (3) committee members, and the condominium association statute is silent as to the required number of committee members; however, selecting an odd number is often encouraged to avoid ties and unnecessary deadlock.
  • Step Two. Place violator on notice: After establishing the fining committee, and upon the occurrence of a violation, the association’s board of directors may place the violating resident (owners and tenants alike) on notice of the violation. Often times, it is most practical to send a courtesy notice warning the resident of their violation. Courtesy notices should contain the nature of the violation, the rule or regulation being violated, and provide a reasonable time frame to remedy the violation. If the violation remains uncured, the association is permitted to impose a fine; however, the violator must be provided with an additional notice, before the fine can take effect, stating that the violator has fourteen (14) days to request a hearing in front of the fining committee to dispute the validity of the fine before it is imposed.
  • Step Three. Fining committee hearing: If the violator requests the hearing mentioned in Step Two above, he or she is afforded an opportunity to appear in front of the fining committee to dispute the validity of the fine being imposed against the violator. The fining committee then has two options: (i) impose the fine levied by the association’s board; or (ii) overturn the fine – at which point the matter ends and the fine is no longer actionable. If the violator fails to request a hearing, for any reason, the fine can be imposed immediately at the end of the fourteen (14) day period.
  • Step Four: Collect the fine. If the fine is approved by the fining committee, the minutes from the meeting should be provided to the association’s board so that they can impose the fine. Typically, the fine is placed onto an invoice and transmitted directly to the violator. As stated previously, fines cannot exceed $100.00 per violation, but can be assessed against the violator for each day that the violation continues until the aggregate amount reaches $1,000.00. Only one fourteen (14) day notice and one opportunity for a fining committee hearing is required, thus, subsequent notices or hearings for the same fineable violation are not necessary. The association laws differ on how a maximum fine can be collected. In homeowners associations, the law provides that once the maximum fine is reached a lien can be recorded against the violator. However, for condominiums, the right to lien is absent. As such, the condominium association must pursue a collection action using the courts, or await a sale and then recoup the amount of delinquent funds at that time.

Hopefully, this step-by-step analysis will help association’s better address compliance and enforcement issues. However, if the process – as outlined above – is not followed properly, it can result in expensive legal exposure that ultimately could invalidate the fine. In fact, if a fine is challenged in court, the opposing counsel will first attack the association’s process in an attempt to invalidate the fine. This is why if you or your association should strongly consider consulting an attorney who is knowledgeable in Florida community association law for guidance.

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.

Wrap-Up of 2018 Legislative Changes for Community Associations

By Dan Rich

On March 23, 2018, Governor Rick Scott signed House Bill 841 into law. House Bill 841, which shall take effect on July 1, 2018, makes numerous alterations to a number of statutes regulating certain community associations (i.e. cooperatives, condominiums and homeowners associations; however, House Bill 841 does not amend Chapter 723, which relates to mobile home parks). Below are some of the highlights of House Bill 841:

Fines and Suspensions: A fine approved by the fining committee of a homeowner, condominium or cooperative association is due five (5) days after the date of said committee meeting at which the fine was approved. Sections 718.303(3)(b), 719.303(3)(b) and 720.305(2)(b), Florida Statutes. If the fine is not paid after the five (5) days said fine can be assessed for each day the violator continues to not comply with the association’s governing documents. Once the fine reaches a total of one thousand dollars ($1,000), the association can then proceed to place a lien on the violator’s property in accordance with Florida law.

Notice of Meetings: A homeowners association, or HOA, is allowed to give notice by email to any parcel owner who has previously provided written consent and an email address to the HOA for the purpose of receiving notices. Section 720.303(2)(c)1., Florida Statutes. Condominium and cooperative associations were previously permitted to do so.

Official Records: A condominium association must permanently maintain the following documents since inception of the association (as opposed to the general requirement of seven (7) years of retention): (i) a copy of the articles of incorporation, declaration of covenants, bylaws and rules and regulations, if any, of the association; (ii) meeting minutes; and (iii) a copy of all plans, permits, warranties and other items provided by the developer at turnover. Section 718.111(12), Florida Statutes.

Board Member Communication: Members of the board of directors for cooperative associations and HOAs are permitted to utilize email as a means of communication; but, a director may not cast a vote on an association matter via email. Sections 719.106(1)(c) and 720.303(2)(a), Florida Statutes.

Term Limits: The provision that a condominium board member may not serve more than four consecutive 2-year terms was repealed by House Bill 841. Now, condominium board members may not serve more than eight (8) consecutive years, unless approved by a two-thirds (2/3) vote of unit owners or there are not enough eligible candidates to fill said vacancy. Section 718.112(2)(d)2., Florida Statutes.

Electric Vehicles: Condominium associations are now permitted to authorize the installation of charging stations for electric vehicles in limited common element parking spaces at the expense of the unit owner to which the parking space is assigned. Additionally, condominium associations may not prohibit unit owners from installing electric vehicle charging stations within limited common element parking spaces, provided that such installations must comply with Section 718.113(8), Florida Statutes.

HOA Elections: If an election is not required by the association’s by-laws because there are fewer or an equal number of candidates than the number of vacancies on the board to be filled, and nominations from the floor are not mandated by the association’s by-laws, then write-in nominations are not permitted and the candidates will commence service on the board regardless of whether a quorum is attained at the meeting in which the directors are elected. Section 720.306(9)(a), Florida Statutes.

Modifications: If a condominium declaration does not outline a procedure to approve material alterations to condominium property, then approval by seventy-five percent (75%) of the voting interests must be obtained prior to the material alterations to the property may begin. Section 718.113(2), Florida Statutes.

In addition to the provisions highlighted above, House Bill 841 contains other changes to Florida’s community association statutes.  Persons who reside or own property within a homeowners, condominium or cooperative association should take time to review House Bill 841. The full text of this Bill is available for free on the Florida Legislature’s website (Link: https://www.flsenate.gov/Session/Bill/2018/00841).  If you have questions about the new laws or how they may impact you or your community, you should consider consulting an attorney who is knowledgeable in Florida community association law for guidance.

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.

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.

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.