According to the NOAA, the National Oceanic and Atmospheric Administration, its Climate Prediction Center (CPC) has updated the averages for the Atlantic hurricane season to reflect more anticipated storms in the upcoming year . . . are you prepared?
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 aftereffects 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 this hurricane season.
Question 1: I live in a condominium or homeowners’ association property. If it sustains storm damage to common-area facilities (i.e., pool, gym, playground, parking areas) due to a storm or hurricane, can I withhold payment of my association dues until the association repairs these common areas while I cannot use these facilities?
Answer: No. While the condominium or 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 association, and repair issues should be pursued with the 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.
Question 2: Is there a law requiring my mortgage company to excuse my monthly payments if I am not able to pay my mortgage payments due to a storm or hurricane?
Answer: There is no general law requiring mortgage
payments to be excused due to hardship from storms or hurricanes. The mortgage company may generally identify a default, and may pursue mortgage foreclosure as allowed by law. However, in the event of a hurricane or storm, you should contact your mortgage company or loan servicer to inquire whether or not it is offering mortgage relief, what programs are being offered, whether or not you qualify, and how to apply.
Question 3: 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.
Question 4: If I suffer property damage from a storm or hurricane and 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 by using the helpful link below. If you elect to avail yourself of these services, we urge you to contact us to discuss the process and the information you may need to have available to present to the mediator.
Question 5: What can a tenant do if a rental unit suffers damage from a storm or hurricane and landlord has not repaired the 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.
Question 6: If I am renting an apartment and my personal property is damaged due to a hurricane or storm, 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.
Question 7: 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.
Question 8: My insurance company sent me a check payable to my name and that of the mortgage company. Why must the mortgage company endorse
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.
Kent A. Showalter III is a native Floridian, born in Sanford, Florida. He received his undergraduate degree, with honors, from the University of Florida in 1992. He subsequently earned his Juris Doctorate, also with honors, at the University of Florida College of Law in 1995. He is admitted to practice before all Florida state courts.
This article is for informational purposes only and you should seek professional legal advice before taking any action based on this article. Further, this information is subject to change due to the rapidly changing legal, political and business environment.