HD Law Partners Blog

Nothing is perhaps more effective in ensuring that there is a smooth relationship between landlords and tenants than carefully drafting and negotiating the contract that governs that relationship and the rights that each party has.

One of those terms includes the terms of “enjoyment” covenant, also known as a covenant of quiet enjoyment. This aspect of the lease refers to what extent the tenant and/or landlord is able to possess the premises in peace without disturbance by others. In other words, it’s the right to undisturbed use, and if it isn’t expressly spelled out with the specifics in the lease, it is automatically implied by the courts. This means that if the landlord “interferes” with this quiet enjoyment in any way, this can provide the tenant with the right to withhold rent and, in some circumstances, even terminate the lease itself.

One thing you will notice is that, even though this covenant is implied, it is usually written into every lease. This is because both parties (landlord and tenant) always retain the right to modify the condition and enforcement of this covenant by the tenant. Thus, when it does appear in a lease, its purpose is typically to restrict the conditions of the tenant’s rights. While this typically looks like language referring to a tenant’s requirement to pay rent and perform all of their lease operations before they enjoy quiet enjoyment against the landlord, contract law actually allows for two parties to contract to pretty much anything as long as it’s legal; thus, a landlord has a significant amount of leeway in building flexibility into this provision in the lease if need be.

On June 14^th, Florida House Bill 398—affecting condominium and homeowners associations—was signed into law. It is important to note how the legislation expands the scope of the current statutory provision and affects estoppel certificates.

Specifically, the bill revises requirements relating to the issuance of an estoppel certificate to certain individuals, requiring a condominium and/or homeowner’s association to designate very specific information for estoppel certificates and prohibiting the association from charging certain fees for making claims if said certificates are not delivered within a specific timeframe, amongst making various other changes.

Estoppel certificates are legal documents sent by homeowners associations that inform people of any amount of money—usually homeowners fees or unpaid fines—that that may be owed to the association.

However, these certificates can cost quite a bit to prepare due to the time and research that goes into them. Thus, one thing that the measure also does is allow the association issuing the certificate to charge up to $250 to prepare and deliver the certificate, with an additional $150 if there are also delinquent amounts owed to the association.

According to the latest Gallup poll, 73 percent of U.S. adults say that divorce is “morally acceptable”; an all-time high, even as the national divorce rate has been on the decline. Since 2001, the public has consistently viewed divorce as morally acceptable, more and more each year. In the decades prior, however, the concept of divorce generated a fair amount of discord in public polling.

Specifically, by mid-1968, before most states adopted no-fault divorce laws, 60 percent of Americans indicated that they wanted the government to make divorce “more difficult.” However, as laws changed during the 20^th century, divorce became more and more familiar to most Americans, allowing it to become more morally acceptable, even as the divorce rate itself continued to decline. 

Moral Acceptability of Divorce in U.S. Hits New High amongst Married and/or Older Adults

Historically, divorce was always more acceptable amongst unmarried adults. However, over the last seven years, married individuals became about equal in this endeavor in accepting divorce as morally acceptable, indicating that attitudes are changing amongst married adults. Even the one major subgroup that has historically remained the most opposed to divorce—“very religious Americans”—is now, for the first time in history, reflecting that a majority of its members find divorce to be morally acceptable.

Some Florida couples deal with mental incapacity issues as they overlap with divorce, and there are laws here in Florida addressing the issue. However, while Florida does allow for divorce in the event that one spouse suffers from a mental incapacity, there are particular waiting periods built into the law in order to protect infirm spouses who, in some instances, cannot defend themselves. Specifically, once determined to be officially incapacitated, an individual needs to have been incapacitated for at least three years prior to commencing dissolution proceedings.

Yet while the law has been put in place in large part to help protect those with severe injuries and conditions such as brain trauma and dementia, there are also individuals who have found themselves the victim of this particular law.

As A Hurdle

While some divorce-mental incapacity cases involve one spouse attempting to take advantage of the other, who has been deemed to be mentally incapable, there are also couples who wish to obtain a divorce, but find themselves waiting for three years or more to obtain it due to some of the loopholes in the law.

As recently covered by the Miami Herald, the issues created by short-term rentals (as facilitated by websites like Airbnb and others) have become one of the most pressing challenges facing both homeowners and condominium associations during the last several years. Specifically, multiple legal issues have arisen from the blatant disregard of association governing documents clearly prohibiting short-term rentals.

And yet, enforcing these restrictions has proven to be extremely difficult, warranting the development of strategic legal measures to address them. This is particularly of concern in Florida, which is one of the top home-sharing markets in the country due to the number of tourists that come through the state on a regular basis.

In response, a number of Florida municipalities are now adopting stringent restrictions and regulations. For example, Miami Beach allows for some short-term vacation rentals in certain zoning districts, but bans them outright in all single-family homes and in some zoning districts. Recently, fines were also raised to $20,000 for first-time violations of these restrictions.

In one woman’s story of divorce, as recently featured in The Washington Post, she describes divorce becoming easier as a couple nears the one-year mark, where “what once seemed like an end is actually a beginning.” For many, life eventually takes them towards entering a second subsequent marriage.

But are there particular precautions and important considerations that should be taken by those who are planning to get married a second time, particularly if they have children from their first marriage? Indeed, second marriage can involve additional complications, particularly if blended families are involved. Below, we go into detail about how you can ensure that you and your family are protected.

Protecting Assets & Accounts in Marriage and Divorce

Absent an agreement indicating otherwise, Florida law mandates that marital property be split equitably. While many younger couples don’t worry about protecting assets or keeping separate bank accounts when they initially enter into marriage, for older couples who already own their own homes, retirement funds, and other assets, protecting these assets—possibly in the interest of their children’s future(s)—are often a number one priority.

The payment of child support after divorce is very important to families for a variety of reasons, the most obvious being that the monies are used in furtherance of the child’s well being and to establish an appropriate quality of life for the child.

Unfortunately, Florida ranks fairly poor among U.S. states, as it relates to social and economic conditions for children, making child support payments that much more important in our state. For example, in 2016, Florida was ranked 39^th in the nation in the Best & Worst States for Underprivileged Children report.  

Child Support Guidelines in Florida

Florida, like other states, has a set formula (or guidelines) for determining child support. Under Florida state law, the judge may vary this plus or minus five percent from the guideline amount after considering all relevant factors, including the needs of the child, age, standard of living, and the financial status and ability of each parent. If the amount varies more than five percent, there must be a written finding explaining why staying within the five percent guideline would be unjust or inappropriate. This can also be the case whenever the child spends a substantial amount of time with either parent, whether temporary or permanent.

On May 22, 2017, the U.S. Supreme Court made a unanimous decision that is being hailed by large technology companies and other patent holders, who have arguably been victimized over the years by what are known as “patent trolls,” or smaller companies that purchase patents only in order to demand royalties and sue for damages (instead of using those patents, for example). This particular type of activity was significantly interfering with the ability for these businesses to effectively run their business models.

Companies referred to as “patent troll” companies would allegedly target very specific courts in which to sue for damages—a practice known as forum shopping—because these remote federal courts had a reputation for friendliness towards plaintiffs, or the suing party. For example, more than 40 percent of all patent lawsuits were filed in federal court in East Texas, even though no major manufacturers are based there. As a result, one judge oversaw about a quarter of all patent cases filed nationwide.

Child custody and visitation issues post-divorce can get messy and complicated. Violating custody agreements can even be considered a crime when they affect future custody and visitation arrangements, often to the detriment of the involved parties.

For these reasons, you always want to ensure that you are working with an attorney experienced in child custody and visitation matters. This can allow for the establishment of an arrangement that better fits the needs of the particular individuals and families involved, sometimes even preventing future conflict.

Under the law in Florida, anyone—including a parent—who commits interference with custody can be found guilty of a third degree felony. That being said, the law also provides for some defenses, such as when:

Rather than taking the risk of violating a child custody order or agreement, speaking with an attorney as a first step is the best way to ensure that you and your loved ones are protected. An attorney can help protect your rights as a parent and address any concerns you may have regarding child custody arrangements/visitation. An attorney may also assist with any necessary emergency relief, especially if you and/or your child are in danger or feel threatened. For example, working with an attorney to obtain a restraining order and/or emergency custody order from a judge.

The First District Court of Appeal of Florida recently held that although HUD (Department of Housing and Urban Development) regulations are a condition precedent to foreclosure, borrowers must raise the issue and timely challenge any foreclosing bank’s compliance with the regulation in order to rely on these regulations in challenging a foreclosure.

In this case, the bank sought to foreclose a mortgage secured by a promissory note issued to the borrowers. The loan note specifically contained a provision providing that if the borrower defaulted by failing to pay in full any monthly payment, then the lender could require immediate payment in full of the principal balance remaining due, as well as all accrued interest, also known as “accelerating payment.”

HUD Regulations & Exemptions

The mortgage established the bank’s remedies in the instance the borrower defaulted on the loan, subject to limitations set forth by HUD regulations. Specifically, the issue in this case involved the right for borrowers to have a face-to-face interview with the mortgagor under some circumstances, but only if the mortgaged property was not located within 200 miles of the mortgagee, its servicer, or a branch office of either (amongst other exemptions). The trial court ruled in favor of the bank’s argument that the right to a face-to-face interview did not apply because the branch did in fact exist within 200 miles of the property.