Sunday, November 24, 2013

Court rebukes delinquent landlord who attempts to evict tenants paying rent to condominium association.

An Orlando case which was heard on July 24, 2013, will hopefully send a strong message to delinquent landlords in community associations who attempt to interfere with their tenants tendering rent to the association pursuant to Florida law. 

In the case of L AND V REALTY LLC, Plaintiff, vs. KENNETH BLOUNT, FELIX THEODORE, & MARCOS PERES, a landlord attempted to evict its tenants because they properly tendered their rent payments to the condominium association after the association sent a letter to the tenants indicating that their landlord owed the association $11,042.74.

Pursuant to Section 718.116(11) of the Florida Statutes, the association demanded that future rent payments be paid directly to the association. The tenants complied and began paying rent directly to the association. As a result, the landlord served the tenants with a three-day notice demanding rent for the month of May on or before May 31, 2013 at the Plaintiff's property management company's office. On May 28, 2013, the Defendants paid May's rent directly to the association and Defendants provided the Court with a copy of the receipt at the hearing on Defendant's motion to dismiss.  On June 21, 2013, the Plaintiff, through its property management company, filed this eviction action for non-payment of rent.

The Defendants also paid June's rent directly to the association and they provided the Court with a copy of the receipt at the hearing on Defendant's motion to dismiss. The court ruled that the tenants' payment of the rent directly to the association within the time frame provided by the three-day notice gave them“complete immunity from any claim for rent by the landlord pursuant to Section 718.116(11), Florida Statutes.

The landlord's tactics in this case are disappointing but certainly not surprising. We have heard of many tenants in community associations being told by their delinquent landlords to "just ignore" the association's demand for rent notice. Tenants ignore the association's demand at their own peril since the association can evict them for not complying with that demand while the landlord's threat to do so is nothing more than a bluff. Of course, a landlord could still evict a tenant who is violating the terms of the lease agreement for other reasons but not for failure to pay rent when the rent is being properly tendered to the association pursuant to a demand for rent notice.

The ability to demand rent from tenants in properties owned by landlords who are not in turn paying their assessments applies to Florida condominiums, cooperatives and homeowners' associations. This statutory right has enabled countless associations to recoup thousands of dollars owed and helped many of them regain a healthier financial footing. Tenants in your community need to be educated about their rights and responsibilities when it comes to the association's demand for rent as they often do not receive accurate information from their landlords.

Sunday, November 10, 2013

Do you know what Air Bed & Breakfast is and how it might impact your community?

The concept of house swapping has been around for quite some time. You may be eyeing that scenic villa in Greece and the villa's owners might just want to come down to your place on the beach in South Florida. I've been tempted to look into this for a while but haven't yet done it.

There is a relatively new concept in housing, however, that doesn't require swapping an entire residence and it is gaining traction quickly as a way for people to earn a little extra money by renting out a room or rooms in their home, condominium or cooperative unit. This concept is called Air Bed & Breakfast.
This is not to be confused with another online service, Couchsurfing, in which hosts allow travelers to crash on their couches for free. This service is more often used by college students and only the most intrepid tourists.

If you haven't yet heard of Air Bed & Breakfast, it might be closer to becoming a reality in your community than you know. This San Francisco-based company was created in 2008 as a way to connect people in need of a place to sleep with spare beds in people's homes. Typically, the service grew out of the housing needs usually associated with special events like the Olympics, Super Bowl or mega conferences where hotel rates are exorbitantly high and room availability very low. Through the use of Air Bed and Breakfast, folks can post the availability of a bed or beds in their home on the site and for travelers who are willing to forego the amenities and security that a traditional hotel offers, it might just be a match made in heaven.

A recent search of the airbnb.com site showed several beds listed in the South Florida area with the average night rate of approximately $70.00. So what, if anything, does this mean for your HOA, condominium or cooperative community? Well, it may mean that some of the beds in your community may some day find  their way onto to the airbnb website. The possibility of this happening is likely to increase if your city or a nearby city hosts a very significant event. From an owner's perspective, this might be a nice way to supplement one's income and pay one's bills. From an association's perspective, Air Bed & Breakfast creates a security nightmare as well as enforcement problems. Given the very short-term nature of the occupancy, proving the violation is ongoing can be very problematic.

The concept of a virtual bed and breakfast service only underscores the larger topic of  how involved a community association board should be in terms of monitoring the people who occupy members' homes. Security and nuisance issues are the two reasons that will be used most frequently to support vigilant monitoring. Freedom, privacy and economic benefit will be the reasons used to support a "hands-off" approach to occupancy.

Battles over occupancy can be some of the most vexing and expensive lessons in a shared ownership community. Many, but certainly not all, association documents specify that only an entire unit or home may be rented and not just rooms. If your documents restrict leasing but not an arrangement that is really a quasi hotel night stay, you might want to consider an amendment to clarify exactly the type of use your community wishes to permit and the types it wishes to restrict.

Monday, November 4, 2013

Not every child should grow up to be a lawyer


Just the other day I heard a complaint from a colleague describing yet another incident of an attorney in our industry being inept. After I learned the name of the person in question, it became obvious to me why the comment was made. The person involved is an accomplished sculptor but the choice of law as a career was practically foisted on him by his parents.


During my time as Managing Partner of my law firm, I came across many people who were earning paychecks as lawyers but whose passions lay elsewhere. I found lawyers who were better suited to being journalists, marketers, musicians, artists and actors. When I asked why they had chosen the law as their profession, the answer was usually that it was the "safe" choice and that there had been significant parental pressure to get a job with some long-term prospects for security.



While that may make for a steady income for the individual, it does not always make for the best attorney fit for your community. After all, we all know that we perform better when our hearts are really engaged in something.



I had a different experience growing up. I knew in middle school that the law was the career I wanted to pursue. I had plenty of practice already at that point debating family and friends on everything from where we took vacations to curfews. When I told my parents that I wanted to be a lawyer they seemed amused but otherwise remained uninvolved with my career choice.



The circle has now closed as my son has just taken the LSAT and is looking at law schools. My first question was "who told you to be a lawyer?" I wanted to be sure that a legal career is something he yearns for and not something that he thinks is expected since both his parents are attorneys.



Next time you interview association attorneys (or any kind of attorney for that matter), you might want to ask when they first knew they wanted to be a lawyer. The answer might be illuminating.