Category Archives: bLAWg

Terminating Condominiums According to the Florida Condominium Act: Part IV

This is Part IV in a series of bLAWg posts dedicated to explaining the process for the termination of condominiums according to the Florida Condominium Act. Previous posts in this series discussed the process of termination due to economic waste, the impossibility to continue as a condominium, and the purchase of condominium property by a developer. Part III explained the required provisions within a plan of termination. This post explains the steps that must be taken to properly execute the plan of termination and what must be done after the plan is executed and in effect. Read Full Post

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Lenders and Vendors Beware: Deprizio Can Spoil Your Insider Guarantees – But a Waiver May Protect You

Lenders and trade vendors often sagely require personal guarantees from the insiders of their debtor. In the event of debtor bankruptcy, a creditor may look to the insider-guarantor to satisfy the debt. The creditor’s ability to be made whole, then, is directly related to the financial position of the insider-guarantor. There is a problem: the Deprizio doctrine can erode the insider-guarantor’s financial position. Under the doctrine, the bankruptcy Trustee may disgorge assets from the guarantor that could otherwise satisfy the debt. Luckily, there is a solution to the Deprizio problem: a carefully crafted guaranty agreement that waives the guarantor’s claim against the bankruptcy debtor. This blawg post explains the problem and clarifies the solution. Read Full Post

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OFFICIAL RECORDS FOR CONDOMINIUM ASSOCIATIONS Part 3 of 3

Section 718.111(12) of the Florida Condominium Act and Rules 61B-22.002, 61B-22.003(3), 61B-23.002(7) and 61B-23.0021(13) of the Florida Administrative Code provide guidelines for the maintenance and inspection of the association’s official records. Part 1 of this 3 part blog identified what records constitute official condominium association documents. Part 2 of this blog identified what records are specifically exempt from inspection by unit owners. This posting will identify specific official records retention requirements and logistical considers associated with unit owner inspections of official records. Read Full Post

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Obtaining Attorney’s Fees as Costs on Dismissed Actions

In litigation, under the right set of facts and law, the losing party is responsible for the attorney’s fees of the prevailing party. But, this determination is not always so simple. This post explores a recent decision where the litigants were entitled to fees under the contract, but fees were not plead in the answer and the case was voluntarily dismissed. Specifically, Lopez v. Bank of America, N.A., 2D12-1270, 2014 WL 1245609 (Fla. 2d DCA 2014) clarifies recovery of attorney’s fees when they are awardable but not plead by a defendant in a dismissed lawsuit. Read Full Post

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Terminating Condominiums According to the Florida Condominium Act: Part III

This is Part III in a series of bLAWg posts discussing the process for the termination of condominiums according to Section 718.117 of the Florida Condominium Act. Part I of this series focused on the process for termination due to economic waste or impossibility to continue. Part II discussed the optional termination process, which was added to the statutes in 2007. This bLAWg post provides an overview of the plan of termination and the required provisions to be included in the plan according to the Florida Statutes. Read Full Post

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How to determine whether a Florida LLC member breached his/her Fiduciary Duty in making distributions

There are many claims available to oppressed members of Florida Limited Liability Companies (“LLC’s”) whose business partners misappropriate assets through unlawful distributions. This bLAWg post focuses on determining whether actions in making improper distributions by majority members or managers of Florida LLC’s constitute breaches of common law fiduciary duties owed to minority interest holders. Read Full Post

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ARE NON-COMPETE PROVISIONS ENFORCEABLE IF THE EMPLOYER HASN’T PAID THE EMPLOYEE DUE COMPENSATION? IT DEPENDS ON THE TERMS OF THE CONTRACT

When an employer seeks to enforce its non-competition agreement against its former employee, one of the most common defenses raised by the employee is that the employer failed to compensate the employee under the terms of the contract. The defense of non-payment is often enough to hamper the employer’s efforts to enforce its rights with a temporary injunction, which requires the employer to demonstrate its likelihood of success on the merits. So how can an employer get its temporary injunction now and fight the “non-payment” battle later? It all starts with contract drafting: if the non-compete provision is expressly independent of the remaining terms and conditions, non-payment of employee compensation is no defense to its enforcement. This bLAWg post analyzes a recent non-compete case is the latest Florida ruling to address the importance of drafting independent restrictive covenants. Read Full Post

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Terminating Condominiums According to the Florida Condominium Act: Part II

As discussed in Part I of this bLAWg series, two scenarios lead to most of the termination of condominiums: 1) the condominium is in a nearly uninhabitable condition and the cost of construction or repairs exceeds the projected fair market value of the condominium property (often due to natural disasters); or 2) the condominium is located on prime real estate and a developer has made an offer to purchase the property for alternative development. Part I focused on the former reason and discussed condominium terminations due to economic waste or impossibility of continuing. This bLAWg post concerns the “optional termination process” established by the Florida legislature in the 2007 revision of the Florida Condominium Act’s termination provisions. See Fla. Stat. §718.117(3). Read Full Post

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Delay Damages: Defenses

Once a delay is successfully proven—discussed in part one of this multi-series—the next step is to deal with any possible defenses. This process varies depending on which side you are on: whether seeking damage for delays or attempting to refrain from paying delay damages. This step must be completed prior to calculating possible damages for a few reasons. Most importantly it avoids unnecessary legal battles, extra costs and headaches. As discussed in the first part of this series, proving that a delay has occurred and determining the amount of damages is specific to each case. There are numerous factors and methods used not only to prove that a delay occurred, but also in measuring the damages that result from the delay and in defending a claim for delay damages. This bLAWg post will provide a brief overview of delay damages generally, and then focus specifically on the defenses. Read Full Post

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Additional Charges for Unpaid Assessments Are Not Collectible Under Florida’s Safe Harbor Provisions of the Condominium and Homeowners’ Association Acts.

The U.S. District Court for the Southern District of Florida, on January 3, 2014, issued an opinion explaining what Florida associations can demand from first mortgagees who are protected by the Safe Harbor provisions of the Condominium and Homeowners’ Association Acts. In United States of America v. Forest Hill Gardens East Condominium Association, the court clarified what charges are included under the terms “common expenses” and “regular assessments” as found within the Florida Statutes. U.S. v. Forest Hill Gardens East Condo Ass’n, 2014 WL 28723 (S.D. Fla. Jan. 3, 2014). In short, the court determined that interest, late fees, collection costs and attorneys’ fees were not “common expenses” or “regular periodic assessments” for which first mortgagees were liable under Florida’s Safe Harbor provision. Id. at 1. Read Full Post

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