Damonte Law Blog

The Latest on Legal Leases for Landlords

Effective as of July 1, 2020, the Florida Legislature amended §689.01 Florida Statutes to remove the requirement of two (2) witnesses to the signing of a commercial lease or residential lease of more than 1 year for the lease to be enforceable. No witnesses are now required for Florida leases of real property, even those for over 1 year.

The witness requirement began long before the era of computers and the internet with the aim of protecting landlords against fraud and forgery. The Florida Courts carved out many exceptions to the witness rule over the years, and only a handful of states still require witnesses to leases. Now that many leases are completed electronically the witness requirement often delays or unnecessarily complicates the leasing process.

Most landlords, tenants and attorneys welcome the change but a few express concerns that landlords may want to put new safeguards into place. Community Associations with questions about the removal of the witness requirement to leases or who want to begin offering leasing electronically can contact their attorney for information on updating their leasing procedures.

Guide to Small Business Administration (SBA)

Economic Injury Disaster Loans (EIDL)

The Federal government’s Small Business Administration (SBA) Economic Injury Disaster Loan (EIDL) provides long-term, low-interest loans to stabilize nonprofit organizations (community associations) and small businesses experiencing a substantial economic injury as a result of the COVID-19 national emergency. The EIDL is used for working capital necessary until normal operations are resumed. EIDLs may not fund expenses like payment of dividends and bonuses, expansions of facilities, retiring federal debt (except IRS obligations), or relocation expenses.

Eligible entities are non-profits and small businesses (under 500 employees). Please check with your bank and other professionals for information regarding eligibility. Specifically, the following CAI members may be eligible.

• Community associations (incorporated as a non-profit in their state)
• Management companies
• Association business partners

What constitutes a substantial economic loss?

• The association or business is unable to pay ordinary operating expenses such as payroll, fixed debts, accounts payable, or other bills.
• The association or business has reduced working capital, increased expenses, cash shortages due to frozen receivables, accelerated debts, and similar economic injuries.

EIDL Grant and Fast Cash Access
Once an application is received, SBA will advance up to $10,000 to the applicant within three days. If this advance is used to support obligations like payroll, paid sick leave for employees, and rent or mortgage payments the $10,000 emergency advance may convert to a grant that is not required to be repaid. Congress allocated $10 billion for these grants.

What are EIDL Terms? How much can be borrowed?
EIDL applicants must have an acceptable credit history and demonstrate an ability to repay the loan. The SBA indicated it will be flexible with applicants to offer maximum support during the COVID-19 national emergency.

Loan amounts (up to $2 million) and payment terms (up to 30 years) are based on an applicant’s financial circumstances and economic injury. Loan interest rates are capped at 2.75% for nonprofit organizations like community associations and 3.75% for businesses. Loans exceeding $25,000 must be collateralized. Community association assessment income streams are acceptable collateral for EIDLs.

How Can My Association or Business Apply?
EIDL applications will be accepted through the SBA EIDL application portal: https://covid19relief.sba.gov/#/

Required Documentation and Forms

SBA strongly encourages applicants to download and manually complete required loan documents before applying. Download the information packet on Applying for SBA Disaster Loans (EIDL) here: https://www.sba.gov/sites/default/files/articles/EIDL_Information_and_Documentation_-_3-23-2020.pdf.

Congress waived some traditional EIDL requirements so applicants may not be required to provide all information below (i.e., tax returns). It is prudent to compile all information SBA may require prior to beginning an application. For detailed instructions,

Required forms for community associations:

• SBA Form 5
• Complete copy of the association’s most recent tax return OR a copy of the association’s IRS tax-exempt certification AND complete copies of the association’s three most recent years’ “Statement of Activities”
• SBA Form 2202, Schedule of Liabilities (Instructions for SBA Form 2202)
• Completed and signed IRS Form 4506-T(Instruction for IRS Form 4506-T)

Required forms for community association management companies and business partners:

• SBA Form 5OR SBA Form 5C (sole-proprietors)
• Completed and signed IRS Form 4506-T(Instruction for IRS Form 4506-T)
• Completed copies, including all schedules, of the most recent Federal business income tax returns
• Completed and signed Personal Financial Statement (SBA Form 413D)
• SBA Form 2202, Schedule of Liabilities (Instructions for SBA Form 2202)

Tips for Completing the Process
SBA reports its web-EIDL application portal is experiencing high traffic volume. To ensure your application process is easier—

• Consider using the web-EIDL application during non-peak hours (early morning or evening)
• Save your application progress regularly
• Be sure to submit all required documentation—incomplete documentation causes delays
• Be patient. SBA predicts it will take at least 2 hours to gather all information required to successfully apply.

Small Business Association (SBA) Economic Injury Disaster Loan (EIDL) Guide

Community Association Institute (CAI) | www.caionline.org/coronavirus

On March 27, 2020, the Department of Business and Professional Regulation (“DBPR”) clarified that the emergency powers §718.1265, Florida Statutes, of the Florida Condominium Act and §720.316, Florida Statutes, of the Florida Homeowners Association Act are available to condominium and homeowners association during the current declared state of emergency to protect the health, safety, and welfare of the association, owners and their families, tenants, guests, agents and invitees.  Presumably, this also applies to Cooperatives through §719.128, Florida Statutes, of the Florida Cooperative Act.

In Emergency Order 2020-04, DBPR specifically ordered that:

The limitations within §718.1265(1) and §720.316(1), of the emergency powers of a board of directors during a declared state of emergency being conditioned upon a “response to damage caused by an event” is hereby suspended. The emergency powers available to a board of directors. As described in §718.1265(1)(a) – (j) and §720.316(1)(a) – (h), Florida Statutes, are hereby available to protect the health, safety and welfare of the association, unit owners and parcel owners, unit owners’ and parcel owners’ family members, tenants, guests or invitees.

The special emergency powers that are available the condominium and homeowners association boards of directors (and presumably cooperative association boards) include the power to:  (i) conduct board meetings and membership meetings with notice given as practicable; (ii) cancel and reschedule association meetings; (iii) implement a disaster plan before or immediately following the event for which the state of emergency is declared; (iv) determine any portion of association property unavailable for use or occupancy based on the advice of emergency management officials or licensed professionals retained by the Board.

Action taken pursuant to the emergency powers must be reasonably necessary to protect the health, safety and welfare of the association, owners and their family members, tenants, guests, agents or invitees.

In addition, Emergency Order 2020-04 suspends and tolls the timing requirements for condominiums associations’ financial reporting.  Specifically, the requirements that condominium associations:  (i) complete a financial report for the preceding fiscal within 90 days after the end of the fiscal year; and (ii) provide a copy of the financial report, or a notice that a copy of the financial report is available, to each unit owner within 120 days after the end of the fiscal year are suspended during the duration of the order.

Emergency Order 2020-04 is in effect until the expiration of the Governor’s declared state of emergency.

Earlier this year Tampa’s Channel 8 News (WFLA) reported on the growing trend of lawsuits being brought against business owners with websites that are not Americans with Disabilities Act (ADA) accessible. Plaintiffs’ counsel have developed a cottage industry of sorts by filing thousands of lawsuits alleging that company websites are not accessible to the blind or visually impaired, in violation of Title III of the ADA, which prohibits discrimination on the basis of disability in “places of public accommodation.” 42 U.S.C. §12182(a). While ADA lawsuits previously focused on physical access barriers to businesses, these new lawsuits allege that: (1) private company websites qualify as places of public accommodation; and, (2) websites with access barriers (e.g., websites without compatible screen-reading software) deny plaintiffs the right of equal access. About 5,000 such lawsuits were filed in federal court for alleged website violations in the first 6 months of 2018 and the number of lawsuits was projected at about 10,000 by the end of 2018. ADA lawsuits over websites have targeted retailers (including Winn-Dixie), restaurants (including Domino’s Pizza, universities (including Harvard and MIT) and healthcare providers (including CVS).

These litigants have now moved on to suing small business and Community Associations in Federal Court for alleged ADA and FHA violations on their websites. The law firms filing these suits often find a single disabled person and then file hundreds of lawsuits supposedly on that person’s behalf. Those filing the lawsuits typically seek tens of thousands of dollars for the settlement of their claims. Many Florida Community Associations have already been served with lawsuits. These litigants claim the ADA applies to Community Associations through the Florida Fair Housing Act and the Federal Fair Housing Act (FHA). They allege that a disabled person was unable to navigate the association’s website and then demand money.

Unfortunately for businesses and community associations there is a split in the Courts as to the requirements for websites to be found compliant with the ADA. As of 2019 we are recommending that our Community Association clients contact a web developer to ensure their websites have a least a minimal level of compliance (screen-reader compatibility) with the ADA and FHA.

For information and pricing on achieving website compliance community associations can contact web development company “thirteen05 creative” in Tampa at (813) 251-0043 which has substantial experience in assessing and upgrading websites for ADA compliance.

Most types of documents will soon be witnessed and notarized electronically in Florida through a remote online notarization (RON) service provider. Online notarization will be conducted through audio-video communication technology. The notary must retain a copy of the audio-video communication.

The notary can also supervise the witnessing of documents online in a similar manner to notarizing the signature of the principal signor. The remote witnesses need not be in the physical presence of the signor or notary. A remote witness must be a resident of and physically located within the U.S. or a territory of the U.S. If the principal signor is a “vulnerable adult” as defined in section 415.102 F.S. the witnesses must be in the presence of the principal signor. If a vulnerable adult is not in the presence of the principal signor, then the witnessing is still invalid. Remote witnessing requires that the witness hear the signer acknowledging the signer’s signature.

An electronic will can be admitted to probate if filed through the e-filing portal and is deemed to be an original of the electronic will. A paper copy of an electronic will which is certified by a notary public to be a true and correct copy can also be admitted to probate as an original. Self-proof affidavits for wills can be electronically witnessed and notarized, if the electronic record that contains the will is held by a qualified custodian at all times before being offered to probate. An electronic will or codicil is revoked by deleting or obliterating an electronic record, with the intent to revoke, as provided by clear and convincing evidence.

Note that “super” power of attorney documents still cannot be witnessed and notarized electronically.

Several technology companies are preparing to offer remote notarization services in Florida including: Notarize (www.notarize.com) ; DocVerify (www.docverify.com) ; NotaryCam (www.notarycam.com) ; Pavaso (https://pavaso.com) ; SIGNiX (www.signix.com) .

The future of notarizing and witnessing documents is coming to Florida January 1, 2020.

Largo attorney Jonathan James Damonte, B.C.S. is recognized in the December 2018 Florida Community Association Journal for his commitment to Florida Condominium and Planned Development Law. Attorney Damonte is one of only 127 attorneys out of over 100,000 attorneys in Florida who have achieved Board Certification by the Florida Bar in Condominium and Planned Development Law and one of only 50 attorneys recognized by the FCAJ. Congratulations Jonathan!

We would like to express our sincerest appreciation for the trust and confidence you place with us. We are grateful to live in sunny Florida and work with so many wonderful investors and communities. We’re so glad to have you as clients, partners, collaborators, and friends and look forward to serving you in 2019. Have a joyous holiday season from all of us at Jonathan James Damonte, Chartered. 

Our office has updated our online security by converting our website to HTTPS and securing an SSL Certificate. You can feel confident in the safety and confidentiality of the information you provide us by seeing the connection is secure in the web address bar and the lock is locked. SSL Certificates are small data files that digitally bind a cryptographic key to an organization’s details. When installed on a web server, it activates the padlock and the https protocol and allows secure connections from a web server to a browser. Typically, SSL is used to secure credit card transactions, data transfer and logins, and more recently is becoming the norm when securing browsing of social media sites.

Happy Halloween from all of us at the Law Offices of Jonathan James Damonte. Please enjoy the Halloween candy in our reception area. Don’t forget to sign up for the last three FREE classes held this year by The People’s Law School at the Drew Street Campus of St. Pete College from 6:30 – 9:00 pm. Evidence is on November 1^st, Contracts on November 8^th and Mock Trial on November 15^th. For more information email us at thepeopleslawschool@gmail.com or call 727-461-4869. Have a safe and happy Halloween!

The Damonte Law 2018 Legislative Update is now available!

Click the link below to download the full Legislative Update!

DOWNLOAD 2018 Legislative Update