Condo Association that did not have a landlord-tenant relationship with the tenant did not have standing to evict tenant because of failure to obtain association’s approval for tenant occupancy

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Plaintiff’  Condominium Association filed an eviction complaint because the Defendant never obtained approval from the Plaintiff for tenant occupancy within the association.

The condominium association did not have a landlord tenant relationship with the Defendant who is the tenant of an unnamed landlord/owner

The court ruled that since a landlord tenant relationship did  not exist between the parties, Plaintiff  lacked standing to sue for eviction action pursuant to Chapter 83.  Notwithstanding, the fact that an association can seek rent from a tenant of an owner where the owner fails to pay maintenance under  §718.116(11)(a), Florida Statutes , in which case a tenant failing to pay rent to the association can then be evicted.

PALM LAKE COOPERATIVE INC. vs.  WILSON, . Palm Beach County.  25 Fla. L. Weekly Supp. 194a

7 ways to prevent cyber fraud

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Reprinted from Attorneys Title Fund Services LLC June 29, 2017

The FBI recently issued a PSA on this topic and emphasized the following prevention strategies:

  1. Stay Informed – If you have an increased awareness and understanding of how the scams present themselves, you are more likely to recognize when you have been targeted. So STAY INFORMED. Read the PSA issued by the FBI and other resources that are made available to you on this topic.
  2. Internal Prevention – Strong internal prevention techniques, especially with front-line employees, have been very successful in deflecting attempts to infiltrate your closing and divert monies.
  3. Use Secured Email Service– Avoid free web-based email addresses. Establish a company domain name and use it.
  4. Register Similar Domains – Register company domain names that are very similar to yours to prevent a criminal from doing so. This is a new one to me and sounds like a really good idea!
  5. Use a Landline– Consider being old fashioned and use a landline telephone to communicate with realtors, buyers and sellers.
  6. Use the Forward Button – Instead of responding to an email by using the “Reply” button, use the “Forward” button, which will require you to type in the correct email address for the recipient. This may avoid an accidental reply to a fraudster using a similar (but false) email address.
  7. Verify Funds Transfers – Confirm, confirm and re-confirm requests for funds transfers. Carefully scrutinize all e-mail requests for funds transfers. Use phone verification but make sure you use previously known numbers and not numbers provided in an email request.

Estoppel Bill enacted effective July 1, 2017

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Attorneys’ Title Fund Services, LLC.  reports that

“on June 14, 2017, the Governor signed Senate Bill (“SB”) 398, which we all affectionately call the “Estoppel bill.” Effective July 1, 2017, the new law makes substantial changes to all three of Florida’s primary community association statutes – chapter 718, F.S. (condominiums); chapter 719, F.S. (cooperatives); and chapter 720, F.S. (homeowners’ associations).

The new law provides mandatory detailed content for association estoppel certificates and provides that the certificate shall be issued by the association within 10 business days after receipt of the written or electronic request for it. We are working on a sample form to distribute to you which tracks the language of the new statute. The certificate is valid for 30 days if provided via hand delivery or by electronic means – 35 days if provided by regular mail.

Of particular import, the association may not collect sums beyond the amounts specified in the estoppel certificate from anyone who relies on the certificate in good faith.

Associations may charge up to $250.00 for an estoppel certificate if no delinquent amounts are owed. If delinquent amounts are owed to the association, up to $150.00 extra may be charged. When certificates are requested to be provided within 3 business days, a $100.00 additional fee is also allowed. No fee may be charged by the association if the estoppel certificate is delivered to the person who requested it more than 10 business days after receipt of the request.”

Sweeping new Condo bill passed – misconduct criminalized

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The Florida Senate unanimously approved a bill that would impose sweeping changes to condominium violations.   The bill is now headed to Governor, and would become law on July 1.

CS/CS/HB 1237  imposes criminal punishments on violations that include forgery of a ballot, theft of association funds,  or the destruction of or the refusal to allow inspection of an official record.

Below are the additions to the existing condominium statute:

SELF DEALING:  Except for a timeshare condominium, a board member, manager, or  management company may not purchase a unit at a foreclosure sale  resulting from the association’s foreclosure of its lien for  unpaid assessments or take title by deed in lieu of foreclosure.

ATTORNEY: An association may not hire an attorney who represents  the management company of the association.

DEBIT CARDS.— (a) An association and its officers, directors, employees, and agents may not use a debit card issued in the name of the association, or billed directly to the association, for the payment of any association expense. (b) Use of a debit card issued in the name of the association, or billed directly to the association, for any  expense that is not a lawful obligation of the association may be prosecuted as credit card fraud pursuant to s. 817.61. 572 Section 2. To implement the website requirement in section 1 of this act, the Department of Business and Professional  Regulation is directed to include within the next condominium association annual fee statement required by s. 718.501(2)(a),  Florida Statutes, a notice informing condominium associations of 150 or more units of the requirement to create a website for association documents that is operational on or before July 1, 2018. 580 Section 3.

SERVICE PROVIDERS; CONFLICTS OF INTEREST.—An  association, which is not a timeshare condominium association, may not employ or contract with any service provider that is  owned or operated by a board member or with any person who has a financial relationship with a board member or officer, or a  relative within the third degree of consanguinity by blood or marriage of a board member or officer. This paragraph does not  apply to a service provider in which a board member or officer, or a relative within the third degree of consanguinity by blood  or marriage of a board member or officer, owns less than 1 percent of the equity shares.

A party contracting to provide maintenance or  management services to an association managing a residential  condominium after transfer of control of the association, as provided in s. 718.301, which is not a timeshare condominium association, or an officer or board member of such party, may not purchase a unit at a foreclosure sale resulting from the  association’s foreclosure of association lien for unpaid  assessments or take a deed in lieu of foreclosure. If 50 percent  or more of the units in the condominium are owned by a party  contracting to provide maintenance or management services to an association managing a residential condominium after transfer of  control of the association, as provided in s. 718.301, which is  not a timeshare condominium association, or by an officer or board member of such party, the contract with the party providing maintenance or management services may be cancelled by a majority vote of the unit owners other than the contracting party or an officer or board member of such party.  Section 6. Section 718.3027, Florida Statutes, is created  to read:  718.3027 Conflicts of interest.— (1) Directors and officers of a board of an association that is not a timeshare condominium association, and the relatives of such directors and officers, must disclose to the board any activity that may reasonably be construed to be a conflict of interest. A rebuttable presumption of a conflict of  interest exists if any of the following occurs without prior notice, as required in subsection (4): (a) A director or an officer, or a relative of a director or an officer, enters into a contract for goods or services with the association. (b) A director or an officer, or a relative of a director  or an officer, holds an interest in a corporation, limited liability corporation, partnership, limited liability partnership, or other business entity that conducts business  with the association or proposes to enter into a contract or other transaction with the association. (2) If a director or an officer, or a relative of a director or an officer, proposes to engage in an activity that  is a conflict of interest, as described in subsection (1), the proposed activity must be listed on, and all contracts and transactional documents related to the proposed activity must be attached to, the meeting agenda. If the board votes against the proposed activity, the director or officer, or the relative of the director or officer, must notify the board in writing of his or her intention not to pursue the proposed activity or to  withdraw from office. If the board finds that an officer or a director has violated this subsection, the officer or director shall be deemed removed from office. The vacancy shall be filled according to general law. (3) A director or an officer, or a relative of a director or an officer, who is a party to, or has an interest in, an activity that is a possible conflict of interest, as described in subsection (1), may attend the meeting at which the activity is considered by the board and is authorized to make a presentation to the board regarding the activity. After the presentation, the director or officer, or the relative of the director or officer, must leave the meeting during the discussion of, and the vote on, the activity. A director or an  officer who is a party to, or has an interest in, the activity must recuse himself or herself from the vote. (4) A contract entered into between a director or an officer, or a relative of a director or an officer, and the association, which is not a timeshare condominium association, that has not been properly disclosed as a conflict of interest or potential conflict of interest as required by s. 718.111(12)(g) is voidable and terminates upon the filing of a  written notice terminating the contract with the board of directors which contains the consent of at least 20 percent of the voting interests of the association.  (5) As used in this section, the term “relative” means a relative within the third degree of consanguinity by blood or marriage.

RECEIVER:   A receiver may not exercise voting rights of any unit  owner whose unit is placed in receivership for the benefit of  the association pursuant to this chapter

TERM LIMITS:  A board  member may not serve more than four consecutive 2-year terms, unless approved by an affirmative vote of two-thirds of the total voting interests of the association or unless there are not enough eligible candidates to fill the vacancies on the board at the time of the vacancy

FINANCIAL REPORTING:  An association shall provide  an annual report to the department containing the names of all of the financial institutions with which it maintains accounts,  and a copy of such report may be obtained from the department 1253 upon written request of any association member.

ASSOCIATION WEBSITE:  By July 1, 2018, an association with 150 or more  units which does not manage timeshare units shall post digital copies of the documents specified in subparagraph 2. on its  website.  The association’s website must be:  (I) An independent website or web portal wholly owned and  operated by the association; or  (II) A website or web portal operated by a third-party  provider with whom the association owns, leases, rents,  otherwise obtains the right to operate a web page,  or collection of subpages or web portals dedicated to  the association’s activities and on which required notices,  records, and documents may be posted by the association.  b. The association’s website must be accessible through  the Internet and must contain a subpage, web portal, or other protected electronic location that is inaccessible to the  general public and accessible only to unit owners and employees  of the association.  c. Upon a unit owner’s written request, the association  must provide the unit owner with a username and password and  access to the protected sections of the association’s website  that contain any notices, records, or documents that must be  electronically provided. . A current copy of the following documents must be 391 posted in digital format on the association’s website:  a. The recorded declaration of condominium of each  condominium operated by the association and each amendment to  each declaration.  b. The recorded bylaws of the association and each  amendment to the bylaws.  c. The articles of incorporation of the association, or  other documents creating the association, and each amendment  thereto. The copy posted pursuant to this sub-subparagraph must  be a copy of the articles of incorporation filed with Department of State.  d. The rules of the association.  e. Any management agreement, lease, or other contract to  which the association is a party or under which the association  or the unit owners have an obligation or responsibility.  Summaries of bids for materials, equipment, or services must be  maintained on the website for 1 year.  f. The annual budget required by s. 718.112(2)(f) and any  proposed budget to be considered at the annual meeting.  g. The financial report required by subsection (13) and 411 any proposed financial report to be considered at a meeting.  h. The certification of each director required by s.  718.112(2)(d)4.b.  i. All contracts or transactions between the association  and any director, officer, corporation, firm, or association  that is not an affiliated condominium association or any other  entity in which an association director is also a director or  officer and financially interested.  j. Any contract or document regarding a conflict of  interest or possible conflict of interest as provided in ss.  468.436(2) and 718.3026(3).  k. The notice of any unit owner meeting and the agenda for  the meeting, as required by s. 718.112(2)(d)3., no later than 14  days before the meeting. The notice must be posted in plain view  on the front page of the website, or on a separate subpage of the website labeled “Notices” which is conspicuously visible and  linked from the front page. The association must also post on  its website any document to be considered and voted on by the  owners during the meeting or any document listed on the agenda  at least 7 days before the meeting at which the document or the  information within the document will be considered.  l. Notice of any board meeting, the agenda, and any other  document required for the meeting as required by s. 718.112(2)(c), which must be posted no later than the date  required for notice pursuant to s. 718.112(2)(c).  2. The association shall ensure that the information and  records described in paragraph (c), which are not permitted to  be accessible to unit owners, are not posted on the  association’s website. If protected information or information restricted from being accessible to unit owners is included in  documents that are required to be posted on the association’s  website, the association shall ensure the information is redacted before posting the documents online.

FAILURE TO DELIVER REPORT:   A unit owner may provide written notice to the division of the association’s failure to mail or hand deliver  him or her a copy of the most recent financial report within 5 business days after he or she submitted a written request to the association for a copy of such report. If the determines that the association failed to mail or hand deliver a  copy of the most recent financial report to the unit owner, the division shall provide written notice to the association that the association must mail or hand deliver a copy of the most recent financial report to the unit owner and the division within 5 business days after it receives such notice from the division. An association that fails to comply with the division’s request may not waive the financial reporting requirement provided in paragraph (d). A financial report received by the division pursuant to this paragraph shall be maintained, and the division shall provide a copy of such report  to an association member upon his or her request.

A renter of a unit has  a right to inspect and copy the association’s bylaws and rules.

Ober reversed on appeal

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Liens recorded after the judgment of foreclosure and before the sale are foreclosed if the lienor does not intervene in the action within 30 days” after the recording of the notice of lis pendens.

On November 26, 2007 a bank  recorded a lis pendens on certain property as part of a foreclosure lawsuit against a homeowner. On September 22, 2008, the bank obtained a final judgment of foreclosure. On September 27, 2012, the foreclosure sale was conducted with the Bank as the successful bidder. It later sold the property to Ober.

From July 13, 2009 through October 27, 2011, Town of Lauderdale-by-the-Sea, recorded seven liens on the subject property related to various code violations occurring after the entry of the final judgment.

Ober filed suit to quiet title, attempting to strike the liens against his property. The Town’s counterclaim sought to foreclose the liens. The trial court granted the Town’s motion, denied Ober’s motion, and entered a final judgment of foreclosure on the seven liens recorded prior to the judicial sale, as well as on three liens imposed after the sale of the property. Ober does not argue that those three post-judicial sale liens were discharged, and on remand the trial court may enter judgment on them.

The 4th Discrict Court of Appeals reversed holding:  [T]he recording of a notice of lis pendens ․ constitutes a bar to the enforcement against the property described in the notice of all interests and liens  unrecorded at the time of recording the notice unless the holder of any such unrecorded interest or lien intervenes in such proceedings within 30 days after the recording of the notice. If the holder of any such unrecorded interest or lien does not intervene in the proceedings and if such proceedings are prosecuted to a judicial sale of the property described in the notice, the property shall be forever discharged from all such unrecorded interests and liens.

A proper reading of section 48.23(1)(d) is, as the Florida Land Title Association suggests, that “when a foreclosure action is prosecuted to a judicial sale, that sale discharges all liens, whether recorded before the final judgment or after, if the lienor does not intervene in the action within 30 days” after the recording of the notice of lis pendens.

James Ober, appellant v Town of Lauderdale by the Sea, appellee, 4th DCA, No. 4D14-4597, 1/25/2017

Defendant not prevailing party where plaintiff voluntarily dismisses for mootness

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A commercial landlord voluntarily dismissed its eviction  after the tenants vacated the property and returned the keys.   The former tenant then filed for attorney’s fees as a result of the voluntary dismissal.

The court ruled that this falls outside that general rule that when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party. The rule is not without exceptions. In this case, the Plaintiff obtained the relief it sought — the Defendants vacated the premises after initiation of the lawsuit and then delivered the keys to the Plaintiff’s agents, which triggered the Plaintiff to file its voluntarily dismissal. Defendant’s actions effectively rendered moot Plaintiff’s lawsuit, but in no way can be said that the Defendant “prevailed,” much less “substantially prevailed.” Kelly v. BankUnited FSB, 159 So.3d 403, 406-07 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D684a]; Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So.3d 1034, 1041-42 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D1611d]; Padow v. Knollwood Club Ass’n, 839 So.2d 744, 745-46 (Fla 4th DCA 2006) [28 Fla. L. Weekly D123d]. As was the case in Kelly, the case of Alhambra Homeowners Ass’n v. Assad, 943 So.2d 316 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D3118a] is clearly distinguishable. To rule otherwise would, in the Court’s view, encourage gamesmanship.

FAMSUN INVEST LLC, vs. IRVI INTERNATIONAL LLC, County Court, 17th Judicial Circuit in and for Broward County.  24 Fla. L. Weekly Supp. 889a

2017 Florida Legislative Session – Pending landlord-Tenant bills

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HB 1287 Criminalizing landlording

GENERAL BILL by Hardemon 3/5/2017

Makes it a crime if the landlord fails to maintain the premises or engages in retaliatory conduct or prohibited practices (self help eviction).  A misdemeanor for the first offense and a FELONY for a second offense.  Read the full bill here

SB 756: Free ride for tenants

GENERAL BILL by Rodriguez

Deletes the requirement for the tenant to post the rent in the court registry within five days and subsequently as rent comes due, and replaces it with a requirement that the eviction be heard within 30 days.  Any requirement to pay rent during the pendency of the court proceedings at the judge’s discretion.  Read the full text here

HB 1423 / SB 1274: Victims of domestic violence protection.

GENERAL BILL by Jenne ; (CO-INTRODUCERS) Baez ; Jacobs 3/7/2017

Prohibits landlord from evicting tenant or terminating or refusing to enter into residential rental agreement because tenant or tenant’s minor child is victim of domestic violence, dating violence, sexual violence, or stalking; allows victim of such violence to terminate residential rental agreement with liability for 30 days rent requires landlord to change locks of dwelling unit within 24 hours,  authorizes tenant to change locks of dwelling unit under certain conditions. Read the full bill here

CS/SB 1588: Servicemember rental applications

Where the landlord or HOA requires the spouse of adult family member of a service member to submit an application for occupancy,  it must be processed in seven days.  Read the full bill here.

Court rules that defective notice of non-renewal may not be amended

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Landlord filed an eviction in Miami Beach, Florida for holdover on February 10, 2016 . The notice of non-renewal of the month to month tenancy was dated November 16, 2015 effective November 30, 2015.  Not only did this fail to give the tenant the fifteen days notice of non-renewal required by §83.56 F.S., but the Miami Beach Code of Ordinances Sec. 58-386, requires thirty days notice of non-renewal of a month to month tenancy. Landlord filed a new notice of non-renewal dated July 11, 2016 and attempted to proceed with the original eviction case.

The court ruled that §83.59(1), Fla. Stats., requires that a landlord lawfully terminate a lease agreement before it can initiate eviction proceedings. At the time Plaintiff filed this eviction action in February, Plaintiff had not properly terminated Defendant’s tenancy. A proper notice of termination is a condition precedent to an eviction. Bell v. Kornblatt, 705 So. 2d 113 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D264a]; Investment and Income Realty, Inc. v. Bentley, 480 So.2d 219, 220 (Fla. 5th DCA 1985).  A cause of action must accrue prior to the filing of a complaint. Hasam Realty Corp. v. Dade Cty., 178 So.2d 747 (Fla. 3d DCA 1965); Rolling Oaks Homeowners Ass’n v. Dade Cty., 492 So.2d 686 (Fla. 3d DCA 1986); Smith Barney Shearson v. Berman, 678 So.2d 376 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1483h].

Author’s Note:  If the eviction had been for nonpayment of rent, the court would have reached the opposite result as §83.60(1)(a) provides that in an action by the landlord for possession of a dwelling unit based upon non-payment of rent, or an action to recover unpaid rent…  the landlord must be given an opportunity to cure a deficiency in a notice or pleadings before the dismissal of the action.

MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION v. LUIS DIAZ,. Miami-Dade County, Civil Division. Case No. 2016-000407-CC-24. October 21, 2016.  24 Fla. L. Weekly Supp. 708a

Summary of attorney’s fees provisions under Chapter 83

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The landlord tenant statute makes the award of attorney’s fees discretionary except in suits to recover security deposit and prohibited practices.

Non-residential

83.231 Removal of tenant; judgment.If the issues are found for plaintiff, judgment shall be entered that plaintiff recover possession of the premises. If the plaintiff expressly and specifically sought money damages in the complaint, in addition to awarding possession of the premises to the plaintiff, the court shall also direct, in an amount which is within its jurisdictional limitations, the entry of a money judgment in favor of the plaintiff and against the defendant for the amount of money found due, owing, and unpaid by the defendant, with costs. However, no money judgment shall be entered unless service of process has been effected by personal service or, where authorized by law, by certified or registered mail, return receipt, or in any other manner prescribed by law or the rules of the court, and no money judgment may be entered except in compliance with the Florida Rules of Civil Procedure. Where otherwise authorized by law, the plaintiff in the judgment for possession and money damages may also be awarded attorney’s fees and costs. If the issues are found for defendant, judgment shall be entered dismissing the action.

Residential

83.48 Attorney fees.In any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment or decree has been rendered may recover reasonable attorney fees and court costs from the non-prevailing party. The right to attorney fees in this section may not be waived in a lease agreement. However, attorney fees may not be awarded under this section in a claim for personal injury damages based on a breach of duty under s. 83.51.

83.49 Deposit money or advance rent; duty of landlord and tenant.

(3)(c)  If either party institutes an action in a court of competent jurisdiction to adjudicate the party’s right to the security deposit, the prevailing party is entitled to receive his or her court costs plus a reasonable fee for his or her attorney. The court shall advance the cause on the calendar.

 

83.59 Right of action for possession

(4)The prevailing party is entitled to have judgment for costs and execution therefore.

83.625  Power to award possession and enter money judgment. The prevailing party in the action may also be awarded attorney’s fees and costs.

 

83.67 Prohibited practices.

(6) A landlord who violates any provision of this section shall be liable to the tenant for actual and consequential damages or 3 months’ rent, whichever is greater, and costs, including attorney’s fees.

 

Fraud Alert !

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The Department of Treasury,  Financial Crimes Enforcement Network,  has issued an advisory about a recent rash of  email and hacking schemes that have defrauded businesses and individuals of “billions”  of dollars.  Many of these target parties  to real estate transactions, and businesses holding escrow accounts.

Any email containing wire/ bank account  information should be encrypted / password protected.

Advise your customers to obtain verbal confirmation from your office of  any email purporting to be from you providing them wire instructions.

Advise your employees to obtain verbal confirmation from your payees of their wire information.

If you, or your customers,  have been deceived into wiring funds to a crook,  you are not covered.

Check your account activity regularly for unauthorized transactions.  Your own bank will deny coverage for fraudulent transactions, given half an excuse.

Checks should be kept locked at all times.  You are not covered for use of stolen checks.

YOU CAN NOT MONITOR YOUR ACCOUNTS FOR UNAUTHORIZED ACTIVITY TOO CLOSELY