Are You Prepared for this Year’s Hurricane Season?

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August 14, 2017

By Kent A. Showalter III, Esq.

Due to storms and hurricanes that have historically impacted Florida, DSK Law has had the opportunity to assist many individuals and small businesses with legal issues related to the after effects of storm damage.  In past consultations with our clients, we have identified certain frequently asked questions or concerns as indicated below which may be helpful to you following Hurricane Irma.

Question:       How can I register for FEMA assistance?

Answer:         You can register online at www.DisasterAssistance.gov or call the FEMA Hotline at 1-800-621-3362.  You may also be able to locate a local Disaster Recovery Center using the link http://asd.fema.gov/inter/locator/home.htm then go in for assistance.

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Question:        I live in a condominium or homeowners’ association property that sustained damage to common-area facilities (i.e., pool, gym, playground, parking areas) during a recent storm or hurricane.  Can I withhold payment of my association dues until the association repairs these common areas since I cannot use these facilities?

Answer:         No.  While the homeowner’s association is certainly obligated to arrange for the repairs of these common areas, you and every other homeowner are jointly the members of this homeowners’ association, and repair issues should be pursued with the homeowners’ association itself.  Moreover, the means and/or budgeting for these repairs may require the input of the homeowners collectively.  Any unexplained failure to engage or address repairs must be pursued through the homeowners’ association itself in accordance with its rules, by-laws, and voting rights.  Failing even those remedies, a lawsuit may be necessary against the homeowners’ association to legally enforce these remedies.

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Question:       As a result of the storms or hurricanes, I am not able to pay this month’s mortgage payment.   Is there a law requiring the mortgage company to excuse my premiums due to the storm?

Answer:         There is no general law requiring mortgage payments to be excused due to hardship from storms or hurricanes.  The mortgage company may foreclose upon a default.  However, you should contact your mortgage company or loan servicer to inquire whether or not it is offering mortgage relief due to Hurricane Irma, what programs are being offered, whether or not you qualify, and how to apply.

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Question:       Who is responsible for damages caused by a falling tree and for removal of the tree as a result of the storms or hurricanes.

Answer:         If the damages were caused by a tree falling as a result of a storm or hurricane (i.e., an act of God), and there was no prior ability to anticipate or knowledge that the tree was a hazard and likely to fall, the damages are likely the responsibility of the owner of the damaged property.  Additionally, the removal of the fallen tree will in most instances be the responsibility of property owner upon whose property the tree landed, including a neighbor if the tree fell across the property boundary.   As to whether the parties’ liability insurance should pay the cost will depend on their individual policies.  Generally, if covered, there will usually be a high deductible on damages resulting from high winds and acts of nature.

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Question:       If my insurance company refuses to approve my claim is my only option to file a lawsuit?

Answer:         No.  You can request mediation with your Insurer through a program set up through the State of Florida Department of Financial Services (formerly called the Department of Insurance) by calling 1-877-MY-FL-CFO (1-877-693-5236) or using the helpful link below.  If you elect to avail your self of this services, we urge you o contact us to discuss the process and the information you may need to have available to present to the mediator.  http://www.myfloridacfo.com/Division/Consumers/Mediation/

You may also have a basis to file an administrative complaint with the Florida Department of Financial Services Division of Consumer Services using the following helpful link: http://www.fldfs.com/Division/Consumers/needourhelp.htm

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Question:   I have hired an individual or company to complete my repairs and they have told me that a permit is not needed or it is my responsibility to get a permit from the local governing authority.

Answer:         We strongly suggest that you only hire State licensed or County certified contractors to work on your property.  Such a license or certification has been issued to the contractor because he has demonstrated a certain level of competency to do the particular work and maintains required insurance.  Before entering into an agreement, we suggest that you ask for and receive the individual’s license numbers.  Please note that many individuals will provide you with a copy of an occupational license issued by a city or county, this is NOT a license that indicates competency it is merely a tax imposed by a local government on individuals who conduct business in the geographic area.  As such it can be obtained by anyone who pays the appropriate fee.

Unless you have minor repairs, as a general rule of thumb, a repair project less then $500 and not electrical, plumbing or structural in nature may be considered minor, most repair projects will require a City of County permit. Please note that the failure to obtain a required permit may ultimately become the problem of the property owner because it subjects the owner to administrative fines and liens if pursued by the local government.  Therefore, if the person you hire, advises you that you do not need a permit, we urge you to contact the building department at your City or County and obtain written confirmation.  If the individual you speak with advises you that a permit is not required, and will not give you written confirmation, we suggest that you obtain that person’s name, title and record the time and day that you spoke with them for your use in the future, if needed.  If you confirm that the information your contractor gave you is incorrect, we suggest that you hire another contractor.  Additionally, in certain instances, a homeowner may act as his own general contractor, even if he does not have a license, and obtain certain permits.  Therefore, if your contractor asks you to obtain the permit, this may be an option, however, there are restrictions that you will have to address.  For instance, a homeowner can only obtain a permit if it is for work on a house in which he actually resides.  In addition, if the work is electrical, plumbing, structural or related to a major roof repair, it may still be necessary for a contractor who is licensed in those areas to obtain the permit under his license number. Finally, you should be aware that the contractor licensing restrictions have been relaxed in recent weeks to allow out of state contractors to do business in the State.  Although, we recognize that hiring an out of state contractor may be the only option available, it is suggested that you proceed with caution in that if you have a problem with the repair work after the contractor has returned to his home state, it may be very difficult to obtain a remedy.

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Question:       What can a tenant do if the landlord has not repaired hurricane damage?

Answer:         Subject to the terms of any written lease, a tenant typically must mail or hand deliver a 7-day notice to the landlord to fix or repair the damages, unless the repairs are the tenant’s obligation in the lease.  If the landlord makes a reasonable effort to cure the violation within 7 days, or if the noncompliance is beyond the landlord’s control, the tenant cannot terminate the lease unless the unit is uninhabitable.  However, the tenant may be able, after providing the notice, to withhold all the rent if the premises are uninhabitable, or if the tenant still lives in the premises, an amount in proportion to the loss of rental value caused by the noncompliance. Remember, a tenant does not have any of these rights until the required notice to fix or repair is mailed or hand delivered to the landlord.

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Question:       If I am renting an apartment and my personal property is damaged, what recourse do I have?

Answer:         Hopefully, you have renter’s insurance. If so, you should contact your insurance company and report your loss. If not, you should see if the landlord’s policy will cover your losses. If not, you may be eligible for a FEMA Individual and Family Grant.

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Question:       Am I as a tenant liable for damage caused by a hurricane to rental property?

Answer:         We will need to review your lease, however, generally, the landlord will probably be responsible unless you were negligent in some aspect that resulted in the damage.

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Question:       My insurance company sent me a check payable to my name and that of the mortgage company. Why must the mortgage company endorse the check?

Answer:         As a general rule insurance companies issue this type of check because as required by the mortgage documents, your mortgage company is an additional insured on the insurance policy.  The mortgage company is includes this requirement as a condition to loan because it has a lien on your property in the amount of the outstanding mortgage and therefore, has a vested interest in seeing that all the necessary repairs are completed in a workmanlike manner.  Therefore, most mortgage companies have the right to require a homeowner to endorse the insurance check and deliver the funds to the mortgage company to be disbursed by the company periodically as the repairs are made.  The mortgage company also may have the right to inspect the repairs before it releases the money. Depending on the extent of the damage and the amount of equity that the owner has in the property, the mortgage company may not require that the funds be held by it and may endorse the check and provide it to the homeowner.  It is suggested that you contact your mortgage company to discuss the specific guidelines.

Please note that this information is provided for educational and informational purposes only, and it is based on the present state of the law without application to specific facts which may exist in a particular case.  As such, if you have any issue following a storm then we encourage you to seek the advice of an attorney.

 

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