Real Estate Blogs

The latest updates from The Law Office of Alexis Gonzalez

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Apartment Owners Beware!

Under the Fair Housing Act (“FHA”), it is unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of . . . sex.” 42 U.S.C. 3604(b). This means that the FHA protects a prospective tenant or homebuyer from receiving different or less favorable treatment in housing terms, conditions, or privileges based on their sex. Until recently, it was unclear whether sexual harassment qualifies as sex discrimination under the FHA.

In Fox v. Gaines, No. 20-12620 (11th  Cir. July 16, 2021), the Eleventh Circuit Court of Appeals definitively concluded that a property owner or landlord could be sued under the FHA for sexual harassment. In Fox, a property manager of an apartment made several sexual advances towards a tenant. First, when the tenant applied to live in the apartment, the property manager commented on her looks. The property manager then told the tenant that he would only hold the unit for the tenant if she kissed him. When the tenant picked up the keys to the apartment, the property manager reminded the tenant about the kiss, and the tenant kissed the property manager. Subsequently, when the tenant failed to pay the full amount of the monthly rent, the property manager offered to exchange sexual favors for a reduced rent. Ultimately, when the tenant ended the relationship with the property manager, she was evicted shortly thereafter for failing to timely pay the rent.

The tenant sued the property owner and the property manager for violations of the FHA and alleged that the sexual harassment constituted discrimination on the basis of sex. The trial court dismissed the case, finding that it was unclear whether the tenant’s claims of sexual harassment were viable under the FHA. However, the Eleventh Circuit Court of Appeals reversed the trial court’s dismissal; holding that the property owner’s and property manager’s sexual harassment in the form of creating hostile a housing environment and quid pro quo sexual harassment, were actionable.

What can property owners do to prevent sexual harassment from occurring between their tenants and property managers? For starters, property owners should vet their property managers and conduct a background check.  A property owner should exercise some level of vigilance over the property manager including keeping track of the amount of rent that is being collected to assure that the full amount (including late fees) is paid. Moreover, property owners should implement some level of manager training and a written sexual harassment policy and clearly convey that policy to the property manager and tenant(s).  While each of the foregoing recommendations would undoubtedly help in reducing the risk and likelihood of property manager misconduct, including harassment,  providing a clear line of communication between the property owner and the tenant would also have helped to possibly prevent the sexual harassment that occurred in the Fox case.

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Are You A Contractor?

When performing any type of work on a building, home, or apartment, it is critical to determine whether you must be licensed to perform that work because, as some people find out the hard way, the client may be able to avoid paying you.1 In some instances, the parties know from the outset whether the work contracted for requires a license. In other instances, the job becomes more complicated over time, and the new tasks may need to be performed by a person holding a specific license.

In the matter of SG 2901, LLC v. Complimenti, Inc., No. 3D19-2131 (Fla. 3d DCA June 2021), SG hired Complimenti to perform some relatively easy work on SG’s apartment, like decorating the apartment, polishing the floors, and preparing the unit for occupancy. But, over time, SG wanted more work done on the property, which required licensed professionals. Complimenti recruited several licensed professionals to meet with SG, and SG hired its preferred licensed professionals, including a licensed general contractor. All the licensed professionals have been told to meet with Complimenti on all matters relating to payment, but SG had the final word on any decisions. After the project was complete, SG refused to pay Complimenti for its services, and Complimenti sued.

SG argued that it could deny Complimenti payment because Complimenti was acting as a contractor. The court rejected this argument. In doing so, the court relied on a two-part test set out in section 489.105(3), Florida Statutes (2020) to determine whether Complimenti was a contractor: (1) the individual must construct, repair, alter, remodel, add to, demolish, subtract from or improve any building or structure; and (2) the job scope must be substantially similar to a job scope described in (a) through (q) of section 489.105(3) (which includes general contractor, roofing contractor, and specialty contractor, among other things). The court found that Complimenti’s job scope was limited to design and decorating services and acting as a point of contact for SG. Any of the hiring or contracting work done on the unit was approved by SG or the general contractor. The court concluded that based on these facts, Complimenti was not acting as a contractor, and SG owed the money due to Complimenti.

The main takeaway from the SG case is that regardless of the type of work you are hired to perform, the work that you actually perform determines whether you need a license. So whenever you are working on a job and are asked to perform more specialized work, ask yourself if you need a license to perform that work. If you need a license, get someone who has a hold of that license otherwise, the client may be able to avoid paying you.

[1] See § 489.128(1), Fla. Stat. (2020) (rendering contracts entered into by unlicensed contractors unenforceable).

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OSHA Regulations In A COVID-19 Era

OSHA will be increasing the number of its inspections. Inspections will vary by industry risk (from low to very high), the nature of a complaint(s), multiple complaints, or other reasons like a random inspection. Inspections are likely to be less frequent for low-risk industries where employees aren’t expected or aren’t at high risk of coming into contact with a confirmed COVID-19 case or frequent, close contact with the general public.

Employers must make a reasonable effort to determine if the COVID-19 case is work-related, using the evidence available to them, and record a COVID-19 case as a respiratory illness under OSHA Form 300 (injury or illness form).

The recording obligation occurs when one of these criteria is met:

1.         A case is “confirmed” within the meaning of the CDC definition, which is: an individual with at least one respiratory specimen that tested positive for SARS-CoV-2 (the virus that causes COVID-19).

2.         The employee was exposed to COVID in the workplace. OSHA defines the work environment as “the establishment and other locations where one or more employees are working or are present as a condition of their employment.” The work environment includes not only physical locations, but also the equipment or materials used by the employee during the course of his or her work.” Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment.

3.         A work-related injury or illness must be recorded if it results in one or more of the following:

1904.7(b)(1)(i)

Death. See § 1904.7(b)(2).

1904.7(b)(1)(ii)

Days away from work. See § 1904.7(b)(3).

1904.7(b)(1)(iii)

Restricted work or transfer to another job. See § 1904.7(b)(4).

1904.7(b)(1)(iv)

Medical treatment beyond first aid. See § 1904.7(b)(5).

1904.7(b)(1)(v)

Loss of consciousness. See § 1904.7(b)(6).

1904.7(b)(1)(vi)

A significant injury or illness diagnosed by a physician or other licensed health care professional.

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Employer/Employee Rights Under The New COVID-19 Legislation Article

In the wake of the coronavirus pandemic, Congress enacted legislation to assist U.S. workers and to define an employer’s new obligations to those workers. Some important new laws include the Families First Coronavirus Response Act (“FFCRA”), the Emergency Family Medical Leave Act (“EFMLA’), and the Emergency Paid Sick Leave Act (“EPSLA’). These laws can be nuanced, fact specific, and at times confusing. Our law firm assists employers and employees in understanding their rights, and would be happy to answer your questions during these difficult and uncertain times.

FFCRA

            The FFCRA sets up a system whereby employees have, under certain circumstances, entitlement to paid leave by covered employers, as implemented through the EFMLA and the EPSLA. The Department of Labor has prepared a poster regarding employee rights, which employers should post in a conspicuous place: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

            Generally, the Act provides that employees of covered employers are eligible for:

             Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or

            Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and

            Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

EFMLA

            The EFMLA expands the Family Medical Leave Act (“FMLA”) to allow for paid leave, subject to various conditions, caps, and limitations. For the EFMLEA to apply, the issue is whether there is a qualifying reason, namely because of the need to take care of a son or daughter whose school or daycare is closing or unavailable because of the coronavirus.

EPSL

            The EPSL provisions of the FFCRA allow eligible full-time employees to take up to 80 hours of paid sick leave between April 1 and December 31, 2020, for one of the six enumerated reasons set forth in the Act, which are:

            i.          if the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

            ii.         if the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

            iii.        if the employee is experiencing the symptoms of coronavirus and seeking a medical diagnosis;

            iv.        if the employee is caring for “an individual” (need not be a family member) who is subject to an order described in (1) above or has been advised to self-quarantine, as described in (2) above;

            v.         if the employee is caring for a son or daughter under the age of 18 because such son or daughter’s school or place of care has been closed, or such son or daughter’s care provider is unavailable due to coronavirus; or

            vi.        if the employee is experiencing any other “substantially similar condition” specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Unemployment

            Employees who have been laid off or furloughed may apply for unemployment.

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What To Do If An Employee Tests Positive for COVID-19

1. Do not identify the infected person, but do advise employees of potential exposure

2. Have the infected person self-isolate and stay home for at least 2 weeks or until tested negative twice

3. Isolate, clean and disinfect the infected person’s work area

4. Set in place mandated work-from-home policies while employees quarantine

As an employer, you want to keep in mind that your employees value and respect the precautions being taken to protect them. You want to be sure to approach all conversations factually and not use terms like “I think” or “I feel”. Be sure your employees are aware that work is still a priority, but also take into consideration and prioritize their needs and their health. Be flexible with your employees and considerate if they fall ill or are overwhelmed by the circumstances.

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Coronavirus (COVID-19): A Force Majeure Defense?

We have all heard the expression “a deal’s a deal.” But sometimes a deal cannot be carried out due to forces outside of a party’s control. Florida law has long recognized potential defenses to the enforcement of a contract under those circumstances. One such defense is impossibility of performance, which is when uncontrollable circumstances make the contract impossible or impracticable to carry out.

Another defense is when an unpredictable “Act of God” such as a storm or an earthquake interferes with a party’s ability to perform.

A third defense is force majeure.  A force majeure clause in a contract excuses performance where performing would be illegal, impracticable, or impossible. Force majeure clauses in contracts can be broader than the scope of impossibility and still be enforceable under Florida law, including those allowing foreseeable, as well as unforeseeable, events to excuse timely performance.

Frustration of purpose is another contractual defense that occurs when some outside actor does something to prevent a party from performing. Arguably, a border closure would be an example.

The bottom line is that there are defenses to enforcement of a contract due to circumstances beyond a party’s control.  Certainly COVID-19 and the need for efforts to control it are well beyond anyone’s control.

Floridians are now faced with a maelstrom of events that potentially trigger the above defenses due to the coronavirus: such as sick workers, quarantined workers, interruptions to customers and supply chains, border closures, and government shut downs or lock downs.

We advise that you contact our attorneys for a review of your contracts, insurance policies, and business circumstances to evaluate whether you may have contract defenses attributable to the current pandemic. While we have not yet seen any published Florida cases directly applicable to COVID-19, it is expected there soon will be, and we can review those with you as well and discuss their application to your business.

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Businesses Combating the Coronavirus COVID-19

  1. Contingency planning
    • Coordinate an emergency plan with Human Resources, IT, Leadership and Counsel
    • Focus on services that are critical to the organization
    • Determine impact of high absenteeism and consider alternative work arrangements such as working from home/or in shifts, temporary workers, staffing agencies
    • Communicate with your vendors to assess how they are planning to address any challenges they may be facing as a result of an outbreak
    • Communicate with your vendors to assess how they are planning to address any challenges they may be facing as a result of an outbreak
    • Identify potential impact of multinational issues, including interruption in supply chain and manufacturing plants (some countries are better prepared than others to handle a Coronavirus outbreak)
    • Examine necessary or potentially needed contractual notices and disclosures
  2. Review, modify and/or implement leave, travel, health and safety policies
  3. Disinfect workplace, particularly common areas and personal workspaces
  4. Incorporate hygienic and preventive measures such as periodically washing hands for a minimum of 20 seconds, hand sanitizing; covering mouth and nose when sneezing or coughing; avoid touching eyes, nose or mouth; staying home if sick.  Refer employees to CDC’s helpful handouts and posters: https://www.cdc.gov/coronavirus/2019-ncov/communication/factsheets.html   
  5. Determine individuals that have a high risk of exposure and create a plan to prevent exposure to other employees, contractors and customers
  6. Identify and monitor potential areas of harassment, discrimination and/or bullying due to Coronavirus effects
  7. Analyze Insurance Policies (Business Interruption, Property Loss, etc.) – policy wording will determine applicability of coverage. Keeping track of all documentation and support for losses is critical for any future claims.
  8. Disaster Assistance may be available from the U.S. Small Business Administration.  The following website keeps businesses updated on the latest information regarding Coronavirus assistance: https://www.sba.gov/page/guidance-businesses-employers-plan-respond-coronavirus-disease-2019-covid-19
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Miami Real Estate Attorney Blog: Foreclosures and How You Can Defend Yourself

Foreclosure defines a legal procedure that gives lenders the right to recover the balance of loans from the borrowers who have stopped making payments. Evidently, the instability of the housing market turns foreclosure into a frightening reality for many people. However, most of the homeowners facing the threat of foreclosure will succeed to keep their homes. That’s because the attorneys who specialize in foreclosure defense are able to help these people deal with almost any foreclosure-related issue. With so many foreclosures in Miami, the only thing you have to do to get legal assistance is to look online for a local Miami real estate attorney.

Defending Yourself Against Foreclosure

A lender may initiate foreclosure at a time specified in the mortgage documents after the borrower has defaulted on their loan. In this situation, the borrower has three options:

1. you can represent yourself in court 2. you can seek legal advice, but develop a defense strategy by yourself 3. you can hire a local Miami real estate attorney specializing in real estate litigation Although you can represent yourself in court, you should always opt for the third variant because it’s the safest one. An experienced real estate attorney knows how to handle different foreclosure proceedings. Furthermore, this professional can develop new payment plans and even help you sell your property for a good price before specific foreclosure proceedings begin. A local real estate attorney in Miami may also advise you to file for Chapter 13 bankruptcy – a legal procedure that prevents properties from being foreclosed upon. If you don’t want to approach a real estate attorney, it’s essential to review and understand your mortgage; check the laws that can protect you from foreclosure, particularly Chapter 702, section 45.301 and Florida statutes; get a copy of your mortgage documents; try to find violations of the Federal Truth in Lending Act; gather records; and identify deadlines. How to Avoid Foreclosure Proceedings Escaping foreclosure is possible if you: Contact Your Lender: If you realize that your financial circumstances prevent you from paying your mortgage, you should contact your lender. Recent surveys have shown that about 50 percent of consumers who have missed payments never contact their lenders. Considering that most mortgage companies want their money and not some properties they may never sell, your lender may be willing to help you out. However, talk to a local Miami real estate attorney before calling your lender. Understand Specific Terms: Before contacting a real estate attorney in Miami, check specific terms, such as forbearance – which happens when a lender offers a temporary suspension or deduction of mortgage payments to allow borrowers to get back on their feet; reinstatement – which takes place when a lender agrees to let borrowers pay the total amount they are behind, by a certain date; and loan modification – which permanently changes the original terms and conditions of a loan, making payments more affordable.

If your lender decides that you can’t keep your home, there are a few more things you can do to avoid foreclosure.

  1. Refinancing: You can ask a local Miami real estate attorney to check whether you should refinance your loan or opt for another strategy
  2. Assumption: This procedure allows a buyer to purchase your property and take over your debt
  3. Deed-in-lieu: If you decide to transfer the title of your property to your lender, your mortgage will be cancelled
  4. Short Payoff: If your home’s value has fallen over the years, your lender may agree to a short payoff and cancel the rest of your mortgage.

Since foreclosure procedures are quite complicated, it is advisable to contact an experienced real estate attorney who can help you avoid foreclosure. They may at least be able to help avoid certain complications and help to secure your financial future.

“The Law office of Alexis Gonzalez, P.A.  offers legal advice. Each matter has to be considered on a case by case basis. Questions and Comments are welcome. Come and interact with us on Facebook and Twitter.”

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Miami Real Estate: Benefits To Hiring a Real Estate Lawyer

Moving to and living in Miami may be your long-time dream. Because buying a home is one of the biggest purchases you will be likely to make in your life, you cannot afford anything to go wrong, and you should seriously consider hiring a local real estate attorney in Miami. You should also consider a real estate attorney should you wish to sell your home.

Buying and selling real estate presents a series of issues only a competent real estate lawyer can sort out. For example, what goes into the contract for sale? Is it possible for the seller to stay in the house for a given period after the sale date? Who is responsible for any losses due to damage after the buyer has made a cash deposit.

Most people enlist the auspices of a real estate broker without consciously realizing the broker is paid by the seller and has a duty to protect the seller’s interests and not yours. A real estate attorney in Miami, on the other hand is there to work for you and to protect your interests only. Most real estate attorneys will assist you in every single aspect of your home purchase. This might include negotiations about the price. The terms to be finally included in the contract for sale, and a host of other details that need to be sorted and concluded, before the closing date.

A real estate attorney in Miami can assist the purchaser in matters including drafting, reviewing, and inserting clauses to protect the buyer during negotiations and supporting the seller in negotiations if required. Other services include:

  1. Checking mortgage documents for any hidden terms the buyer will need to know about to make an informed decision.
  2. A real estate lawyer can also help in negotiating the mortgage terms with the lender or bank.
  3. Overlooking the inspection reports required by all mortgage companies, and renegotiating the price based on such inspection reports and its findings.
  4. Checking the title for encumbrances to ensure there are no others who hold an interest in the home and could be in a senior position to the seller. The lawyer will endeavor to ensure the buyer gets full title to the property before any closing documents are signed.
  5. Purchasing title insurance; this will protect the buyer should someone own a senior interest in the property that was not uncovered in the title search.
  6. Help the buyer understand the necessary surveys of the property.
  7. Overseeing the closing documents, and making sure that the closing goes without hitch and on time.
  8. Recording the deeds and the mortgage documents.
  9. A  real estate attorney in Miami will stand by after closure should any issues arise once the buyer has moved into the property. He or she may also advise on matters such as the $25,000 Florida Homestead Exemption.

A seller of real estate would be advised to enlist the services of a real estate attorney to protect their interests, from negotiations through to closing.

Buying a property is a huge investment and it is vital all legal matters are dealt with by professional real estate lawyers, to ensure everything goes as smoothly as possible, and there are no nasty surprises after the sale or purchase has gone through.

“The Law office of Alexis Gonzalez, P.A.  offers legal advice. Each matter has to be considered on a case by case basis. Questions and Comments are welcome. Come and interact with us on Facebook and Twitter.”

The FHA protects a prospective tenant or homebuyer from receiving different or less favorable treatment in housing terms, conditions, or privileges based on their sex. Until recently, it was unclear whether sexual harassment qualifies as sex discrimination under the FHA.

When performing any type of work on a building, home, or apartment, it is critical to determine whether you must be licensed to perform that work because, as some people find out the hard way, the client may be able to avoid paying you.

OSHA will be increasing the number of its inspections. Inspections will vary by industry risk (from low to very high), the nature of a complaint(s), multiple complaints, or other reasons like a random inspection.

In the wake of the coronavirus pandemic, Congress enacted legislation to assist U.S. workers and to define an employer’s new obligations to those workers.

Take the right steps in ensuring the safety of your employees during the COVID-19 pandemic.

Does Florida Law Provide Relief to Contracting Parties in the Form of the Doctrines of Impossibility of Performance, Acts of God, Frustration of Purpose, and Force Majeure, Due to the Coronavirus (COVID-19)?

For business and business owners, this global pandemic can be worrisome and fearful. In an attempt to prevent the Coronavirus COVID-19 from affecting you, please keep in mind the following tips.

Foreclosure defines a legal procedure that gives lenders the right to recover the balance of loans from the borrowers who have stopped making payments.

Because buying a home is one of the biggest purchases you will be likely to make in your life, you cannot afford anything to go wrong, and you should seriously consider hiring a local real estate attorney in Miami.