Category Archives: bLAWg

Condo Associations Must Ensure That Accepting Partial Payments from Delinquent Unit Owners Won’t be Considered Payment in Full

By Hans C. Wahl, Esq.

Condominium association budgets suffer significantly when unit owners become delinquent in paying assessments. Moreover, the burden for those unpaid assessments falls on the responsible unit owners who must make up the shortfall in the next yearly budget, which often results in higher assessments across the board. For this reason it is important that associations have collections policies in place to pursue unpaid assessments. However, associations must ensure that in their zeal to collect unpaid assessments that accepting partial payments from delinquent unit owners won’t be considered payment in full of the entire debt owed. This blawg post will discuss a recent court case which serves as a loud warning to all associations when accepting partial payments from delinquent unit owners.
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Unlicensed Contracting in Florida: Beware of Arbitrating This Issue

By: James O. Birr, III

The Florida Statutes provide for licensing of certain contractors performing work in this state. If a contractor does not have the requisite licensing, that contractor will not be able to enforce its contract or lien rights. See Florida Statute Section 489.128. This is a dagger to any person seeking to enforce such an illegal contact. While on its face, this statute appears clear, when a party is in arbitration, such an illegal contact may still be enforceable. The Village at Dolphin Commerce Center, LLC, vs. Construction Service Solutions, LLC.
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Construction Industry Licensing Board Part II – Proper Methods for Certified General Contractor to Obtain Roofing Experience

By Christopher M. Cobb, Esquire

Many Florida contractors and license holders have a general understanding of the Florida Construction Industry Licensing Board (“CILB”), but like many quasi-judicial bodies, it can remain a mystery to those who practice and appear in front of the CILB. For those who chose to appear pro se in front of the 18 member CILB to resolve and discuss licensing issues, the prospect may seem downright daunting. This post will cover some specific information that license holders and his/her attorney should know before they appear in front of the CILB.
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Expert Testimony Admission Standard in Florida: An Analysis of the 2013 Transition from Frye to Daubert

By: Charles B. Jimerson, Esq.
By virtue of HB 7015, signed into law by Governor Rick Scott, effective July 1, 2013, Florida state courts will no longer apply the “Frye standard” (Frye v. United States, 293 F. 2d 1013 (D. C. Cir. 1923)) for determining the admissibility of expert testimony. Instead, Florida now follows Section 90.702, Florida Statutes, which incorporates the “Daubert standard” for expert witness admissibility as reflected in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), and its most notable progeny, General Electric Co. v. Joiner, 522 U. S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U. S. 137 (1999). This bLAWg post will examine the “Daubert standard” and discuss how it may impact litigation moving forward. Read Full Post

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Avoiding the Selective Enforcement Defense When Enforcing Condominium Association Rules and Regulations

By Hans C. Wahl, Esq.

One of the most challenging aspects of effectively running and operating a condominium association is the constant turnover in board membership and the inconsistency this creates concerning rules enforcement. Most association board seats are up for reelection at least every two years if not every year. When members decide to run for the board, they often do so because they feel the current board is not properly running the association or enforcing its rules. Yet once a newly elected and motivated board attempts to right the ship and enforce the bylaws and rules and regulations, it finds itself having to respond to selective enforcement defenses due to the prior board’s failure to act. This presents quite the conundrum. Board members have a fiduciary duty to enforce the association’s governing documents but cannot do so effectively. There must be a solution. This bLAWg post will discuss how a board can avoid the selective enforcement defense when enforcing condominium association rules and regulations. Read Full Post

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Anti-Waiver Provisions in Contracts

By: James O. Birr, III and Brandon C. Meadows

Parties in litigation often argue waiver or estoppel in an attempt to counter an adversary’s claims or defenses. A carefully crafted “anti-waiver” provision in a contract, however, can go a long way to avoid these waiver and/or estoppel arguments. Read Full Post

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Qualifying Agent for Licensed Contractors and the Lake Eola Builders Exception

By Austin B Calhoun

Construction is a risky business. One risk is the danger to the public from activities of incompetent contractors. The Florida Legislature has addressed this risk. Chapter 489, Florida Statutes, regulates construction “contracting,” as defined in Section 489.105(6). To protect the public, a business organization that wishes to engage in contracting must be “licensed.” To be licensed, a business organization must have a “qualifying agent” in accordance with Chapter 489 concerning the scope of the work to be performed under the contract. Fla. Stat. 489.128(1)(a) (2014). This requirement raises questions: Who is a qualifying agent? How does a company register a qualifying agent in accordance with Chapter 489? When does a company need to register a qualifying agent? This blawg answers these three questions and addresses the federal Lake Eola Builders case that tries to craft an exception to the strict rules of Chapter 489. Read Full Post

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Venue Selection Clauses in Construction Contracts: Contractors and Subcontractors Beware

By: James O. Birr, III

Most well written construction contracts, or any contract for that matter, have provisions governing venue for litigation of disputes arising out of or related to the contract. These types of provisions are commonly referred to as venue selection clauses. Depending on how the venue clause is worded, a court may require the parties to litigate their claims in a venue that does not jibe with what the parties intended. In the context of construction defect cases, and notwithstanding whether the venue clause is mandatory, parties may still be required to litigate in a forum other than the one they selected. Love’s Window & Door Installation, Inc. v. Acousti Engineering Company. Read Full Post

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Construction Industry Licensing Board

By Christopher M. Cobb, Esquire

Many Florida contractors and license holders have a general understanding of the Florida Construction Industry Licensing Board (“CILB”), but like many quasi-judicial bodies, it can remain a mystery to those who practice and appear in front of the CILB. For those who chose to appear pro se in front of the 18 member CILB to resolve and discuss licensing issues, the prospect may seem downright daunting. This post will cover some general information that license holders and his/her attorney should know before they appear in front of the CILB. Read Full Post

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Notice of Contest of Lien for Condominium and HOA Liens

By Christopher M. Cobb, Esquire

The Condominium Act and the Homeowners’ Association Act create separate thresholds for perfecting a claim of lien for delinquent assessments. Both acts require specific notices to the delinquent owner before the association may record a claim of lien. Even with all of these statutory requirements, a savy unit owner may be able to knock out an assessment lien on his property by employing a rarely utilized section of the Condominium Act or Homeowners Act. Read Full Post

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