HD Law Partners Blog

One issue that has already come up in a number of contexts due to the coronavirus pandemic, including when it comes to business and landlord-tenant breach of contract claims, is the force majeure clause, or the provision in contracts which excuses non-performance of some contract obligations if certain unforeseeable events occur which makes fulfilling these obligations impossible (usually known as “acts of God”). Historically, these clauses have included earthquakes, floods, hurricanes, and sometimes also labor disputes, strikes, wars, etc.

However, some commercial tenants are now arguing that COVID-19 constitutes a “force majeure” event that makes fulfilling their rent obligations impossible, while many businesses have been and continue to argue that they cannot fulfill their contract obligations due to COVID-19 creating extraordinary and unforeseeable events.  These events and circumstances include workers unable to show up for work, having to close down facilities, states mandating social distancing, supply chains abroad shutting down, etc. There is no question that the courts will be filled with these disputes once that they are up and running again.

Battles over decorations between residents and homeowners’ associations is a common issue that both associations and property managers face on a regular basis here in Florida. This is one reason why you want to make sure that, as an association, you work with an experienced homeowners’ association attorney in creating association documents or amendments, as well as the appropriate covenants and restrictions, so that you are best able to manage these disputes and know what your rights beforehand – before they come up, or turn into expensive legal battles that can last decades.

Take a case that heads to trial in late February here in Florida after nine years of back-and-forth disputes between one unit owner and his homeowners’ association: The dispute involved the resident wanting to display an American flag in a flowerpot, which defied the homeowners’ association’s rules. After initially filing a federal lawsuit in 2012, his homeowners’ association settled and agreed that he could display the flag as long as his display complied with association rules. In exchange, he agreed to refrain from making disparaging statements about the association. However, one year later, the association began to assess a fee against him because of a new association rule about not allowing displays in flower pots, specifically. The resident once again filed a federal lawsuit against the association, and cited the Freedom to Display the American Flag Act of 2005. However, a federal judge dismissed his lawsuit because the law does not provide unit owners with the right to sue in federal court. Meanwhile, the association filed suit against the resident for making disparaging comments about it.

In February, a jury awarded one plaintiff almost $8.5 million verdict, which included eight million dollars in punitive damages, as a result of an insurance bad faith litigation claim brought against insurance company National General. The case is one that all insurance companies should be aware of in terms of what it means to thoroughly investigate a claim and whether or not a good faith dispute over coverage validly exists. It involved an insurance claim filed on a fire damaged RV, which was ultimately denied by National General after several of the company’s investigators found the incident to be suspicious and reported claiming that the fire originated in two separate locations and was caused by the actions of an individual. The insurance company ultimately came to suspect that the plaintiff may have set the fire himself.

It is also notable that the Florida legislature is currently floating a proposal to adjust issues related to bad faith lawsuits brought against insurers here in Florida; a proposal that would ultimately benefit insurance carriers, who currently face bad faith actions fairly regularly when it comes to disputes over coverage.

Florida lawmakers are currently considering a bill that would affect a number of commercial landlord and tenant issues by addressing the ability for tenants to keep emotional support animals. Specifically, while it would prohibit landlords from charging more for emotional support animals, it would also allow them to ask for proof and hold a pet owner liable for any damage that they cause to property. In addition, the legislation mandates that any pet owners who obtain fraudulent letters in order to keep their pets as emotional support animals would also be penalized.

The bill has come about in part as a result of commercial landlords complaining that people are exploiting their ability to simply keep a pet with them at all times by claiming that they are emotional support animals.

For legal purposes, it is important to distinguish between service dogs covered under the Americans with Disabilities Act (ADA) and emotional support dogs. The ADA dictates that individuals with disabilities may have their service animals in all areas that constitute “public accommodations,” such as stores, restaurants, schools, hotels, apartments, etc. These animals are specifically trained to assist someone with mental, physical, psychiatric, intellectual, or other disability, and the animal’s work must be directly related to that. For example, if someone is blind, they may have an animal that helps them cross the street.

As Florida attorneys who provide legal representation to homeowners’ associations (HOA), while also representing those affected by a foreclosure proceeding, the issue of homeowners’ associations foreclosing on homes over unpaid fees can be a challenging one that affects more people than you realize; especially since some 30 to 40 percent of the country lives in homeowners’ association communities. Many people and possibly even some homeowners’ association do not realize that in Florida and a number of other states, if you fail to pay assessments and dues, the association can obtain a lien on your property that leads to foreclosure. In fact, most people think that only their mortgage lender can seize their property.

However, the law also dictates that the association cannot file this lien unless it first provides the homeowner with 45 days to pay what they owe via a written demand. Still, in its assessments lien, it can not only include unpaid assessments in the lien, but also late charges, interest, and attorneys’ fees. Defaulting on assessments means that the association can foreclose by filing a lawsuit, even if you are current on your mortgage payments. This is why – if you are involved in a disagreement with your association – failing to pay fees is not the way to address the disagreement; rather, speaking with an attorney to discuss your options makes more sense; especially since it can be difficult to even figure out how much is actually owed to the HOA.

As commercial landlord and tenant attorneys who help ensure that landlords have enforceable commercial leases and experienced counsel to help with any disputes, one of the issues that we frequently assist landlords with here in Florida are common area maintenance, or “CAM” charges. These charges have a significant impact on the property’s net operating income and how much tenants pay. However, disputes can arise with tenants when it comes to CAM charges because unique situations may require costs to be calculated in a way that is different than what is spelled out in the current lease terms. As a result, it is important for commercial landlords to have a thorough understanding of what CAM charges are/include and how to properly account for them in the lease, with the assistance of an experienced attorney.

Below, we discuss what CAM charges are, what’s included in them, the types of commercial real estate leases that do and do not include them, and how they are calculated:

An article recently featured in TIME magazine highlights why it is so important for couples to address certain issues in pre-and post-nuptial agreements, including pet custody issues, in order to avoid expensive, lengthy court battles later on. The article highlights just how important pets are becoming to us and how one individual spent close to $40,000 in legal fees fighting for custody over dogs in their divorce because the custody issue was not addressed in a prenuptial agreement.

Pets are becoming just as important as children for more and more people each day. In fact, according to a survey by the American Veterinary Medical Association, 80 percent of pet owners view their pets as family members. More and more pets are also adopted rather than purchased and described as mixed breeds, indicating that their value comes from something other than what they cost. In fact, of the more than 1,000 millennial pet owners surveyed in 2018, almost 70 percent indicated they would actually take work leave to care for a new pet if possible, and 60 percent of men and 80 percent of women considered their pets to be their “fur babies.”

An important landlord and tenant case decided in December could have an effect on landlords around the country. The court specifically held that landlords can be held liable under the Fair Housing Act if they fail to reasonably address tenant race discrimination from other tenants. This is the first time the law has been expanded beyond direct action by landlords and allowed for landlords to be held liable for actions committed by third parties.

The case involved a tenant who allegedly experienced egregious discriminatory harassment from his next-door neighbor, who remained a tenant in the building even after he was arrested by police for aggravated harassment and a protective order was entered against him.

What The Fair Housing Act Says

The Fair Housing Act prohibits discrimination “by direct providers of housing,” such as landlords and real estate companies, as well as those in connection with the housing, such as banks and lending institutions, if/where discriminatory practices make housing unavailable to someone due to:

As attorneys who help countless clients prepare for and get through divorce here in Florida, we also frequently counsel our clients on general suggestions for getting through their first holiday after divorce. A number of parents are especially concerned about where to draw the line between preserving old traditions while making new ones with their children at the same time.

Experts of all types of backgrounds have offered their advice when it comes to coping after divorce, especially during your first holiday. It is a predominant theme amongst each of these experts that parents consulting their children on what their preferences in terms of new versus old traditions tends to work well for getting through this time and finding a new, happy balance. Below, we discuss some additional tips from experts on how to make the most of your holiday after divorce:

Focusing On Your Children & Building New Traditions

As attorneys who regularly assist clients here in Florida with trademark disputes, we also help to counsel clients on registering a business trademark. A business’ trademark is essential in identifying its “brand” and protecting its goods and services, both in terms of another company using that brand and all of the various legal implications that can accompany this issue. A brand may also be associated with very valuable intellectual property that needs to be protected. Registering your trademark provides you with exclusive legal rights and protects others from copying it, and once your trademark is registered, it does not expire. Having a trademark attorney assist you is crucial in ensuring that this is done correctly and in accordance with the law.

As defined by the United States Patent and Trademark Office, trademarks are words, symbols, phrases, designs, or all of the above that identifies the source and distinguishes it from others. Note, however, that the name of a business is not necessarily the trademark, and may not be registerable. Trademarks are often used to refer to both goods and services even though, technically, a service mark protects services.