Monthly Archives: February 2015
Drones in Community Associations – Part I
Florida homeowners and condominium associations are now facing issues that were inconceivable at the time the community governing documents were drafted. The use of drones or UAS (“unmanned aircraft systems”) is beginning to exponentially expand. With the potential for packages … Read Full Post
Why Community Associations Cannot Afford to Ignore Lender Foreclosure Actions – Part I
By Hans C. Wahl, Esq.
It happens all the time—an association gets served with a lender foreclosure action and the papers get set aside, never given a second thought. It is hard to fathom a more costly approach to association management that, in the long run, produces a greater negative impact to the association’s budget. Let’s take a second to consider why it is that community associations are named defendants in a property owner’s foreclosure action and get served with the lawsuit in the first place. The reason is because associations have a financial interest and lien rights in the underlying property for the required assessments pursuant to their declarations and the Florida Statutes. By ignoring lender foreclosure actions an association is ignoring its own financial interest and main source of revenue. This blog post is the first in a series of posts discussing the top reasons why community associations must not ignore lender foreclosure actions. Read Full Post
Contingent Payment Provisions in Florida Construction Contracts
By: James O. Birr, III
One of the most important provisions in any construction contract, or any contract for that matter, is the payment provision. Before signing the contract, parties must understand how and when they get paid and, in turn, when they are required to make payment. One way parties, particularly contractors, attempt to handle payment uncertainties is to include contingent payment provisions or time of payment provisions in their construction contracts. These provisions are commonly referred to as pay-if-paid and pay-when-paid provisions and are enforceable in Florida. While these provisions sound the same, they operate very differently and, as such, may have unintended consequences for the parties. Read Full Post
Setting Aside Fraudulent Transfers Part II: Voluntary Dissolution and Individual Liability of Principals
This blog is related to the previous blog post of “Setting Aside Fraudulent Transfers” as it relates to a creditor’s efforts to recover from a dissolved corporation or dissolved LLC. Setting Aside Fraudulent Transfers Part I: What to look for when going after officers or successor company discussed how a creditor may go after the successor corporation to set aside a fraudulent transfer. This blog post will discuss a creditor’s rights to go after principals for individual liability when a company has been improperly dissolved. Read Full Post
Florida Community Associations: Board Member Conflict of Interest
By: Hans C. Wahl, Esq.
With the number of community associations throughout Florida and the constant rotation of board members via yearly elections and other means, it is inevitable that conflicts of interest occasionally arise. For example, maybe the preeminent landscaping company in town just happens to be owned by an association’s vice president? Or, what if the best pool guy in the area is the son of a current board member? Such conflicts do not mean the association is automatically relegated to lower quality service. Moreover, the existence of a conflict in interest is not inherently a bad thing or evidence of corruption. The law requires board members to disclose conflicts of interest, and the Florida Statutes establish certain procedures that must be followed when conflicts exists. This blog post will provide an overview of the disclosure requirements when association board members have a conflict of interest, according to the Florida Condominium Act and the Florida HOA Act. Read Full Post
Setting Aside Fraudulent Transfers Part I: What to Look For When Going After Officers or Successor Company
You have a claim against a corporation and/or its officers, but you find out that the corporation is dissolved and there is a successor corporation in its place that appears to be essentially the same corporation. Now what? In Bernard v. Kee Mfg. Co., Inc., Florida’s Supreme Court adopted the traditional corporate law rule and its exceptions by holding that the liabilities of the selling predecessor will not be imposed on the buying successor company “unless (1) the successor expressly or impliedly assumes obligations of the predecessor, (2) the transaction is a de facto merger, (3) the successor is a mere continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid liabilities of the predecessor.” 409 So. 2d 1047, 1049 (Fla. 1982). Based on the foregoing, a claimant must prove one of these exceptions to the general rule to implicate the liability of the successor corporation on behalf of the predecessor company. In this bLAWg post, we will focus on the successor’s liability pursuant to the fraudulent effort to avoid liabilities. Note, this particular issue may be closely linked to improper dissolution or failure to properly wind down, but that is a topic for another discussion interrelated to a creditor seeking recovery from officers, shareholders, and corporations. Read Full Post
Fixing or Addressing Mistakes in Public Construction Contract Bids
What happens if you make a mistake in your bid response and need to correct it? This is a common circumstance in practice because the timing of solicitations and responses creates a pressure packed situation. Often subcontractor pricing is received and updated until the very last moments before a response is due. This often causes mistakes, both in the form and in the substance of bids submitted. It is not unusual for contractors to make mistakes in their bids, some resulting from mathematical errors, some from typographical miscues, while still others may be based upon errors in judgment or the failure to conduct a proper site investigation prior to bidding. Mistakes happen quite regularly and reasons for mistakes are abundant. If you realize that you have made a mistake in your bid or proposal prior to the bid opening date and time, you should immediately contact the agency to see if you may withdraw your bid, correct it and resubmit prior to the bid opening date and time, or in the alternative whether you may submit a sealed statement clarifying the error before the bid opening date and time. This blog post deals with what happens in Florida when you aren’t able to correct your mistake in public construction contract bidding. Read Full Post
The Bidding Process for Public Construction Contracts In Florida
For many small and mid-size contractors, the award of a single public contract can make or break their business. Because of this, it is important for a contractor to know and understand the requirements and processes involved when bidding on a public construction contract. A contractor must first make sure the contract is worth the time and money spent in preforming the contract. Knowing whether you, as a contractor, can perform the contract and provide all requested information is vital in determining whether you should bid on a specified contract. In addition, meeting specified deadlines is extremely important for the response to be accepted. In order for a contractor to navigate this bidding process, knowledge of the process is elemental. Read Full Post
Florida’s New Rules and Procedures Governing Mortgage Foreclosures
By: Brandon C. Meadows, Esq.
Lenders take heed: the Florida Supreme Court recently amended the Florida Rules of Civil Procedure governing mortgage foreclosures. Additionally, the high court promulgated several standard forms, which reflect the amended rules. The recent rule amendments and forms are in response to the recent legislation regarding mortgage foreclosures, including the new Section 702.015, Florida Statutes, which set forth the new pleading requirements for foreclosure complaints. The purpose of the statute is to “expedite the foreclosure process by ensuring initial disclosure of a plaintiff’s status and the facts supporting that status, thereby ensuring the availability of documents necessary to the prosecution of the case.” Read Full Post
Owner’s Partial Use of the Property Does Not Preclude Loss of Use Damages in Construction Defects Cases
Owner’s Partial Use of the Property Does Not Preclude Loss of Use Damages in Construction Defects Cases
By Austin B. Calhoun, Esq.
Under Florida law, a property owner may be entitled to “loss of use” damages if construction delay or defects deprive the owner of use of the property. Loss of use damages are measured by the reasonable rental value of the property. These rules raise some questions. For instance, can an owner claim “loss of use” for the period that owner refuses to inhabit the property while construction defects are being repaired? What if owner partially uses the property during such time? These questions were addressed in a recent Florida Third District Court of Appeals case: Gonzalez v. Barrenechea, 2015 Fla. App. LEXIS 647 (Fla. 3d DCA Jan. 21, 2015). This blog examines the Gonzalez case and the answers provided therein. Read Full Post