HD Law Partners Blog

Florida is home to one of the largest populations of homeowners’ associations, and the main responsibility of these associations is to establish rules and regulations regarding how the community operates in order to ensure that property values stay at a certain level. As a result, there are inevitably a number of disputes that regularly occur between associations and members, who want to make alterations to their property, but cannot necessarily do so if the act violates those rules and regulations put in place to keep everyone’s property values high.

One of the issues that we as homeowners’ association attorneys regularly see involves homeowners wanting to put up solar panels. While the Florida Solar Rights Act forbids associations from prohibiting the installation of solar or other energy devices on buildings, associations may require approval of a system installations, and may put in place “reasonable” restrictions for those installations. Associations also cannot prevent the installation of solar collectors on roofs, nor can they impose restrictions that, in effect, impair the performance or increase the cost of the overall system. However, they can determine the specific location where solar collectors may be installed on the roof, as long as this does not impair the operation of the collectors.

Clarifying the Florida Supreme Court’s March Administrative Order suspending the requirement for clerks to issue writs of possession, in April, Gov. Ron DeSantis signed an executive order suspending evictions and foreclosures for 45 days (from April 2) due to the coronavirus pandemic. While landlords have been sending out eviction notices at this time, they will only be executed once the moratoriums are lifted. It is also important for tenants to note that they are still contractually obligated to pay any back rent owed; usually within five days.

Still, there appears to be confusion as to whether DeSantis’ Order only applies to residential tenants or both commercial and residential tenants. The Order specifically suspends and tolls any statute providing for:

Indicating that the order does not apply to commercial tenants.

Commercial Landlords May Still Be in Need of Creative Options If Tenants Are Having Difficulties at This Time

The coronavirus has brought a whole new type of family law dispute into relevance when it comes to custody issues. A number of doctors, first responders, and other healthcare workers here in Florida have found themselves subject to emergency court orders, whereby they can very quickly lose shared custody of their children simply due to their profession until the pandemic is over.

Take one doctor in South Florida who was the subject of an NBC Miami story and whose child’s father requested and received an emergency order granting him sole custody entirely related to the COVID-19 outbreak even though she tested negative for the coronavirus because the judge deemed that it was necessary to “protect the best interests of the minor child,” including the child’s “safety and welfare.” While that same doctor was able to successfully appeal the emergency order, winning a return to their 50-50 shared custody arrangement while they await a final ruling, she and many others who are divorced parents are either in constant panic or busy fighting these orders, suffering through disrupted lives while they try to help those battling the virus during their workday and custody rights during their personal time.

Everyone around the world is feeling the impacts of the coronavirus, whether you are looking at business closures, working remotely from home, children’s schools closing, hospitals, or a number of other everyday regular fixtures in our lives. However, no one was really prepared for the virus to affect family law issues, such as divorce and parenting plans. A number of schools here in Florida closed and are not going back for the rest of the academic year, while others are closed until at least April 15.  As a result, most parents found themselves staying at home for coronavirus seclusion with their kids during the first few days of the lockdown, and then perhaps transitioning the kids to the other parent as part of their time sharing plans.

Yet because there is no “pandemic clause” in a divorce agreement, a number of parents are also now experiencing severe anxiety when it comes to these custody issues and the regularly-scheduled transitions between parents. While their parenting plans may cover ‘normal’ days, they, by no means, cover what is happening at the moment with the coronavirus. In fact, in some states, it has become such an issue that some state Supreme Courts have had to weigh in and dictate that divorced couples follow originally published school schedules.

Commercial eviction proceedings have been complicated by the coronavirus, as more and more cities and states pass emergency laws barring evictions of tenants, as well as foreclosures, in some instances, all while landlords are still expected to finance mortgages and satisfy their lenders. This includes Florida, where, in late March, the state Supreme Court issued an administrative order that will affect evictions and foreclosures.

As a result, it is important for landlords to review their leases with commercial landlord attorneys in order to ensure that they understand their rights and are prepared in terms of how any new laws and court decisions have altered those rights. Landlord attorneys can also assist landlords in coming up with creative solutions by agreement, such as partial base rent abatement and/or a repayment schedule, for example, and in researching other options, such as finding out if certain commercial tenants have business interruption insurance policies that can provide coverage during this time. At the same time, landlords will of course also have to consider obligations to their lenders and the effects any lease modifications they enter into will have on their loan covenants, and commercial landlord attorneys can review loan documents so that they are aware of the requirements and what is they need to do in order to ensure that they are in compliance.

Increasing issues associated with COVID-19, the coronavirus, have caused a number of issues in Florida to the point where Governor DeSantis had to declare a State of Emergency. At this point, there is not only an increased risk to the elderly and those with compromised immune systems, but to everyone, as we know so little about the transmission of the virus and how it operates.

As a result, we are receiving a number of questions from parties with concerns surrounding the coronavirus; one of them being homeowners’ associations and boards that are concerned about how the virus might affect their residential communities and what can be done to protect them, as well as any management issues that could arise as a result.

Consult an HOA Attorney & Maintain Balance by Taking Precautions but Not Overreacting

It is important that associations do not take drastic measures such as prohibiting anyone who has traveled to certain areas from returning to their homes or pursuing emergency statutory powers without first consulting a homeowners’ association attorney. Instead, it would be better to try and strike a balance between ensuring that associations are not negligent in ignoring the threats that the virus poses – especially when it comes to certain communities with open layouts, whereby residents are constantly coming into contact with each other in common areas – and overly restrictive protocols that unnecessarily restrict residents’ freedom, which could lead to legal challenges.

There is no question that the coronavirus quarantine is placing a strain on a number of relationships, and has made some realize that divorce is their only option for moving forward with their life. One of the main stressors involves people losing their jobs and/or a percentage of their net worth as a result of the quarantines and market upheaval. Some separated parents who are not yet divorced are also finding themselves in compromised situations due to the virus, whereby they now have new concerns about the other parent spending time with their children, which is also speeding up a desire to move forward with divorce. Some in the throes of divorce are even now find themselves living in the same house together due to the timing of the quarantine, and a percentage may be stuck in an abusive situation, not necessarily able to run to a friend or family’s home for shelter due to social distancing concerns. Those at risk of physical abuse are especially vulnerable now right now and may not be able to seek out medical help by going to the hospital due to virus concerns.

The issue of the coronavirus potentially causing business losses and a number of U.S. companies thinking that their insurance policies cover this loss of revenue due to the outbreak will likely be a significant source of insurance bad faith litigation as we face more and more losses due to the virus. According to the Organisation for Economic Cooperation and Development, if the virus continues along its current path, it could cut the year’s global growth by half to 1.5 percent for the year, causing a $1.5 trillion loss due to the disease.

Business Interruption & Contingent Business Interruption Insurance Policies

Many are estimating that these losses will be greater than disasters such as Hurricane Katrina, but less likely to be insured. This is because while most-all companies have business interruption insurance as part of their insurance policies in order to cover operations losses when business has to halt unexpectedly, these policies are almost always linked to “direct physical loss or damage” as the definition of what constitutes loss that validates payment, and quarantines do not cause physical damage in the same way that a fire or earthquake does.

One of the main reasons that people create a legal entity for their business, such as a corporation or a limited liability company, is for liability protection. That is to say, such entities shield individual owners or directors from personal liability for actions taken by the business as a whole. An aggrieved party can therefore only seek monetary damages against the entity itself.

To strengthen this concept, American law has long recognized a principle known as the business judgment rule. This basically states that a judge (or jury) should not second-guess business decisions made by the directors or managers of a company, presuming they acted in good faith and within the scope of their legal authority. For example, a person cannot sue the individual members of a corporation’s board of directors simply because he disagrees with a business decision made by the board as a whole.

When you are in the process of going through a divorce you may receive a notice that your deposition will be taken by your spouse’s attorney. Lawyers take depositions in order to discover information, find out more about what a potential witness might say, and preserve testimony for trial. This can not only help them with evidence, but also potentially gather statements that can be used against your interest and credibility. It is very important that you work with your attorney and prepare for the divorce deposition, as preparation is key for these depositions. You never want to go in without knowing what to expect and having practiced.

Divorce depositions are usually around three hours long (although they depend on the specific circumstances of the divorce) and include your attorney, your spouse’s attorney, and the court reporter to record answers word-by-word. Your spouse may also be present, as well as any others that are relevant to the case; for example, a Guardian Ad Litem or child representative. Judges are not present and will not review the deposition transcript unless an attorney calls on them to do so.