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Recovering Property When Tenant has Vacated or Abandoned

Evictions can be painful for Florida landlords. However, they are typically unavoidable when a tenant fails to pay rent and refuses to voluntarily vacate a property.

Fortunately, some tenants decide to simply move out on their own. Often, this occurs when the tenant needs to move for a job, or another reason, and wants to cut their losses in the form of not paying the last month’s rent. When this occurs, the landlord can skip the eviction process and legal and court costs that would otherwise be be necessary.

However, there are conditions. Section 83.59 of the Florida Statutes outlines the law.

1. Voluntary Surrender of Possession.

First, if the tenant voluntarily surrenders possession to the landlord (e.g. by handing over the keys and agreeing to move out), the landlord can proceed with taking the property back into its own possession (typically, by changing the locks and beginning clean out).

2. Actual Knowledge of Abandonment.

Second, if the landlord has “actual knowledge” that the tenant has abandoned the premises, the landlord can proceed with retaking possession. “Actual knowledge” requires firm evidence, such as notification by the tenant. Suspicion of abandonment usually will not rise to the level of “actual knowledge”. For example, if the tenant appears to have removed furniture and cannot be found, but the landlord has no concrete knowledge that the tenant has permanently vacated, the landlord does not have “actual knowledge”.

3. Presumption of Abandonment.

If the tenant has not voluntarily surrendered possession, and the landlord has no “actual knowledge” of abandonment, the landlord must follow the conditions in Section 83.59(3)(c) before retaking possession.

In the absence of “actual knowledge,” the landlord can presume the tenant has abandoned the property if the tenant is absent from the property for a period of time equal to one-half the time for periodic rental payments. This is typically 15 days, corresponding with monthly rent payments. Importantly, this presumption does not apply if the rent is current OR the tenant has notified the landlord, in writing, of an intended absence

4. Special Rules for Deceased Tenants.

In the unfortunate event that a tenant has passed away, another option for recovering the property is available, if all of the following conditions are met:

Last remaining tenant of a dwelling unit is deceased,
Personal property remains on the premises,
Rent is unpaid,
At least 60 days have elapsed following the date of death, and
The landlord has not been notified in writing of the existence of a probate estate or of the name and address of a personal representative.

This option does not apply to a rental used in connection with a federally administered or regulated housing program, where specific restrictions are applicable.

DISCLAIMER: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.

Acts of God in Florida Construction

Construction projects don’t always go as planned. Sometimes, unexpected events like bad weather or supply delays can throw a project off schedule. That’s where a force majeure clause comes in. This part of a contract helps manage delays caused by things beyond anyone’s control. Let’s break it down in simple terms and look at an example to see how it works.

What is a Force Majeure Clause?

A force majeure clause is like a safety net in a construction contract. It gives contractors some breathing room when something unexpected happens, like a hurricane, a strike, or a sudden shortage of materials. These clauses usually outline what kinds of events qualify and what the contractor can do if one of those events occurs.

Force majeure clauses have two key parts:

Scope: This is the list of events the clause covers. Some clauses are very detailed and list specific events like natural disasters or labor strikes. Others are broader and cover anything beyond the contractor’s control. Some clauses also say the event must be truly unexpected. Be careful with this requirement—in today’s world, what counts as “unexpected” can be tricky to define.
Remedy: This is what the contractor gets if a force majeure event happens. Most clauses allow for more time to finish the project without penalties. However, they don’t usually cover extra costs, like replacing damaged materials or paying overtime to catch up. If you want the clause to include cost adjustments, you’ll need to negotiate that upfront.

Practical Example: How Force Majeure Works

Let’s say you own a construction company, BuildCo, and you’re building an office complex. Your contract says the project must be done by December 31. Then, a hurricane hits the area. It damages part of the building and delays the delivery of key materials.

Luckily, your contract has a force majeure clause that includes natural disasters. You notify the project’s architect about the situation and provide proof of the delays. The architect reviews everything and agrees to give you more time, moving the deadline to February 28.

But here’s the catch: the clause only covers extra time, not extra costs. BuildCo has to pay out of pocket for the damaged materials and overtime wages. If you had negotiated a clause that also covered these costs, you could’ve avoided that hit to your budget.

Tips for Contractors and Project Owners

Make Sure the Clause Fits Your Needs: Check that the events listed are broad enough to cover common risks. Avoid clauses that are too restrictive or require events to be completely “unpredictable.”
Decide on the Remedies: Think about whether the clause should cover just more time or also extra costs. If you want cost adjustments, make sure they’re written into the contract.
Customize the Clause: Don’t just rely on standard templates. Tailor the clause to match the specific challenges of your project.

Force majeure clauses are an essential part of construction contracts. They help manage risks and reduce disputes when unexpected problems arise. By understanding and customizing these clauses, contractors and project owners can protect themselves and keep their projects on track.g smoother project completion.

Are Old Construction Liens Valid in Florida?

Construction liens can create significant headaches for property owners, particularly when they surface during a title search or refinancing process. Filed by contractors, subcontractors, or suppliers, these legal claims can stall transactions and leave property owners wondering: Is this lien still valid? This article explains Florida’s laws governing lien duration.

When Do Liens Come Up?

Imagine a homeowner preparing to sell their house, only to discover a lien during the title search. The lien, filed two years earlier by a contractor, claims unpaid amounts for a kitchen remodel. Alternatively, a homeowner seeking to refinance might find their application delayed due to an unresolved lien from a dispute over roofing work. In these scenarios, the validity of the lien becomes critical.

The One-Year Time Limit for Liens

Under Florida Statute § 713.22(1), a construction lien generally expires one year after it is recorded unless the lienor files a lawsuit to enforce the lien within that time. Also, if the lienor amended the lien to reflect additional work completed later, the one-year clock resets from the date of the amended lien’s recording.

For example, a contractor records a lien for a driveway project completed in January. The contractor does not file a lawsuit by January of the following year. In this case, the lien may be unenforceable after the one-year period unless an exception applies.

Recording a Notice of Lis Pendens

Even if the lienor files a lawsuit within the one-year period, the lien’s enforceability might depend on whether the lienor records a notice of lis pendens. This notice serves as a red flag to the general public, putting them on notice about potential issues with the property’s title.

Importantly, if the notice of lis pendens is not recorded, the lien may unenforceable against creditors or subsequent purchasers for valuable consideration and without notice. However, the lien may still be enforceable against others, such as buyers who were aware of the lien at the time of their purchase.

For example, suppose a contractor files a lawsuit to enforce a lien but neglects to record a notice of lis pendens. A buyer unaware of the lawsuit purchases the property. In this case, the lien may not be enforceable against the buyer. However, if the buyer had actual notice of the lien, enforcement may still be possible.

Shortening the Lien Period: The Notice of Contest

Property owners can take proactive steps to shorten the one-year enforcement period by recording a notice of contest of lien. Under § 713.22(2), this notice gives the lienor only 60 days to file a lawsuit. If the lienor fails to do so, the lien expires.

For instance, a homeowner discovers a lien while preparing to sell their house. To resolve the issue promptly, they record a notice of contest of lien. If the lienor does not file a lawsuit within 60 days, the lien is extinguished, likely clearing the title for sale.

Practical Takeaways

• For Property Owners: If a lien surfaces, investigate its timeline. If no lawsuit was filed within the one-year period, the lien may not be enforceable. If the lien is still within its one year lifetime, consult with your attorney and consider filing a notice of contest to expedite resolution.

• For Lienors: Timely action is critical. Filing a lawsuit within the one-year period and recording a notice of lis pendens ensures the lien’s enforceability against third parties.

Understanding Florida’s lien laws can help avoid delays and legal disputes. Whether you’re a property owner or a lienor, staying proactive about deadlines and legal requirements is important to protecting your interests.

Construction Indemnification Basics for Florida Contractors

In construction contracts, indemnification clauses serve to shift risk from one party to another, usually by requiring one party (the indemnitor) to protect the other (the indemnitee) against certain types of loss or liability. Here are the main types and levels of indemnification which contractors might encounter.

Types of Indemnification

1. Common Law Indemnification:

This indemnity arises outside of the contract and is based on tort law principles. Under common law indemnity, one party (typically one without fault) seeks indemnification from a responsible party. In Florida, common law indemnity requires that the party seeking indemnification is completely without fault and is liable only vicariously. This standard is challenging to meet, as it requires the indemnitee to be entirely blameless .

2. Contractual Indemnification:

Contractual indemnity provisions allow parties to allocate risks and responsibilities as they see fit. These provisions are subject to statutory and judicial constraints, with the intent being to place liability on the party best able to control or mitigate the risk. In Florida, for example, such agreements must be reasonable and clearly articulated in the contract .

Levels of Indemnification

Indemnity obligations are typically structured across a spectrum, from limited to broad forms, with increasing levels of coverage and responsibility:

1. Limited Form Indemnification:

In limited indemnification, the indemnitor agrees to cover only the portion of damages or liability directly attributable to their own negligence. For instance, if the indemnitor (e.g., a contractor) is 60% at fault for an incident, they would only indemnify the indemnitee (e.g., the owner) for 60% of the related liability .

2. Intermediate Form Indemnification:

Intermediate indemnification requires the indemnitor to assume responsibility for damages or liability that occurred in whole or part due to their own negligence. Under this form, even if the indemnitor is only partially responsible (e.g., 1% at fault), they must cover the full amount of the indemnitee’s liability .

3. Broad Form Indemnification:

The broadest level, broad form indemnification, obliges the indemnitor to cover all liabilities incurred by the indemnitee, regardless of whether the indemnitor was at fault. This form of indemnification requires the indemnitor to assume liability for any damages, including those caused solely by the indemnitee’s negligence. Broad form indemnity shifts extensive risk to the indemnitor, which may be unenforceable under Florida law.

These levels define the scope and degree of responsibility the indemnitor assumes in protecting the indemnitee from potential losses. Understanding these distinctions is essential for contractors to gauge their liability exposure and ensure compliance with statutory restrictions.

How Will 2024 Election Impact Florida Contractors? (P. 1)

The recent election of President-Elect Donald Trump, and corresponding Republican sweep, may raise hopes among contractors who have struggled with regulatory burdens and compliance pressures for years. Trump’s stated priorities – both tightening immigration enforcement and reducing federal regulation – may bring challenges and opportunities for Florida contractors. Here’s what we except for the coming years if Trump fulfills his campaign promises:

1. Mass Deportation Reduces Competition from Non-Compliant Contractors

One of Trump’s major campaign promises was a strict immigration policy, including a mass deportation plan for undocumented immigrants. While this may cause workforce challenges for some in the industry, contractors who already hire documented workers may see distinct benefits.

Leveling the Playing Field: For contractors who comply with employment laws and hire documented workers, this policy could mean a fairer competitive landscape. Non-compliant contractors who rely on undocumented labor often operate with lower costs due to reduced labor expenses. With increased enforcement, these companies may find it more challenging to operate, reducing competition and giving compliant contractors an edge in the market.

Potential for Market Growth: As enforcement reduces the availability of undocumented labor, companies that hire legal workers may experience increased demand. With fewer competitors bidding on projects, contractors following the law can expect greater stability and potentially improved margins.

Compliance Emphasis on Documentation: Although this policy may reduce competition, contractors should ensure strict adherence to federal work requirements, as immigration enforcement will likely be more stringent. Maintaining thorough employee records and following proper hiring protocols will be essential to avoid any compliance issues.

2. Deregulation Offers Relief for Small Contractors

In addition to immigration reform, Trump has proposed significant deregulation efforts aimed at reducing the operational burdens imposed by federal agencies. We expect his may include agencies such as the Occupational Safety and Health Administration (OSHA), the Environmental Protection Agency (EPA), and potentially, regulations overseen by the various federal contracting agencies. For contractors, this could mean both fewer administrative hurdles, as well as cost savings.

OSHA Requirements

OSHA regulations are often cited by small contractors as onerous and costly, especially for businesses with limited resources to dedicate to compliance. If Trump’s deregulation plans move forward, contractors could see simplified safety requirements, reduced paperwork, and fewer compliance audits. This reduction in administrative burdens could allow contractors to focus more on project execution and less on navigating OSHA’s complex regulatory frameworks.

EPA Regulations and Federal Permitting

Federal environmental regulations, primarily overseen by the EPA, have historically imposed lengthy permitting processes and compliance requirements that can significantly delay construction projects. For contractors, these requirements often translate to extended timelines and increased project costs, particularly for projects involving land development, water management, or other environmental impacts. The Trump administration’s focus on deregulation may include changes to the EPA’s regulatory scope and adjustments to federal permitting processes.

Currently, environmental permits can often take months or even years to secure. If the EPA scales back on these requirements or if permitting is expedited, contractors could see reduced waiting times between project concept and execution. Faster approvals would allow projects to move forward more quickly, giving contractors greater scheduling flexibility and reducing the time spent waiting on the EPA to approve a project.

Federal Acquisition Regulation (FAR)

The Federal Acquisition Regulation (FAR) is the primary regulation for use by all federal executive agencies in their acquisition of supplies and services with appropriated funds. This principal set of rules, which guides approximately $600 billion each year in federal contracting, is as long as the entire Harry Potter series combined. The FAR includes 2,000 pages of regulatory requirements, such as rules for setting pay terms, identifying small-business affiliation, and meeting labor requirements set forth in the Service Contract Act. Likewise, the FAR requires agencies to incorporate various contract clauses in the contracts that directly bind contractors.

Some commentators have pointed out that the government has so many rules for federal contracting, even seasoned government contracting officers aren’t able to keep up with them. This state of overregulation presents similar challenges for contractors, particularly, small businesses with limited administrative resources. Therefore, if Trump chooses to simplify the FAR by rooting out unnecessary requirements, it could make federal projects more accessible to smaller contractors, while reducing the administrative burden and expense for larger firms.

3. Closing

President-Elect Trump’s focus on mass deportation and deregulation will likely reshape the construction industry by reducing competition from non-compliant contractors and easing regulatory requirements. For contractors who have been diligent in following employment laws and maintaining high standards, these changes could create a more level and less burdensome operating environment.

Note: This article is part of a multi-part series. Please check back later for additional updates and analysis by visiting www.readylegal.net.