by Chris Cervellera, Esq.Six Things You Should Know About Florida’s New “Anti-Squatter” Law
The ink is barely dry on Florida’s new “Anti-Squatter” law, and misinformation about what this law does and doesn’t do is at a fever pitch. Having someone on your property without your permission, whether it is your home, an investment property, or other real estate, can be a stressful and dangerous situation. This new law is a step in the right direction to give property owners more effective and efficient remedies and rights in these situations. However, it is essential to fully understand the laws that impact your rights as a property owner, including this new law (FULL TEXT – HB 621 – “An act relating to property rights; creating s. 82.036,”).
Let’s take a few minutes to discuss some essential aspects of this new law and clear up some misconceptions.
1.) The word “Squatter” is not even used in the law.
It’s funny how the media uses terms like “Squatters,” and the public then takes the term and applies it to a broad range of situations. Similar to other real property laws, this new law refers to “unauthorized persons” and “unauthorized occupants” but does not actually use or define the word “squatter.”
2.) This new law is not an alternative to evicting a former or current rental tenant.
The text of the new law is clear, and its remedies are only available if “(f) The unauthorized person or persons are not current or former tenants pursuant to a written or oral rental agreement authorized by the property owner.”
In recent months, the media has shown dramatic stories about long-term or short-term rental tenants who do not leave at the expiration of their rental term. This law does not apply in these cases, and the property owner may need to go through a formal eviction to assert their property rights and lawfully remove the past/current tenant. In Florida, we “evict” current tenants who are in breach of their lease or tenants hold over at the expiration of their lease.
3.) Sorry, but you probably cannot use this new law to remove your ex-boyfriend, ex-girlfriend, or mother-in-law.
If you permitted someone to enter and stay on your property, it can be reasonably argued that they had a lawful invitation to be there (e.g., girlfriend, boyfriend, mother-in-law, father-in-law, etc.). Therefore, it can be argued that this new law does not apply to situations like this because the law says the unauthorized person must have “unlawfully entered”—”(c) An unauthorized person or persons have unlawfully entered and remain or continue to reside on the property owner’s property.”
In these situations, when the property owner wants to remove an unauthorized occupant who is not a rental tenant, but that person claims to have a right to be on the property (i.e., they were told by the property owner that they could enter and stay), an “ejectment” action may be the most appropriate remedy for the property owner to pursue.
4.) This law does not apply to vacant land or commercial property without a residential dwelling.
If the real property in question does not have a “residential dwelling,” then this specific law will not apply—“(b) The real property that is being occupied includes a residential dwelling.” In these situations, when there is not a residential dwelling on the property (e.g., vacant land or commercial property), a “trespassing” complaint or an “unlawful detainer” action may be the most appropriate remedy for the property owner.
5.) Eight elements must be met for this new law to apply.
Above, I have discussed some elements for this new law to apply. However, in total, eight elements must be present. Additionally, when you make your complaint to law enforcement, you must sign a sworn statement (under penalty of perjury) that all of the following elements are satisfied:
- (a) The requesting person is the property owner or authorized agent of the property owner.
- (b) The real property that is being occupied includes a residential dwelling.
- (c) An unauthorized person or persons have unlawfully entered and remain or continue to reside on the property owner’s property.
- (d) The real property was not open to members of the public at the time the unauthorized person or persons entered.
- (e) The property owner has directed the unauthorized person to leave the property.
- (f) The unauthorized person or persons are not current or former tenants pursuant to a written or oral rental agreement authorized by the property owner.
- (g) The unauthorized person or persons are not immediate family members of the property owner.
- (h) There is no pending litigation related to the real property between the property owner and any known unauthorized person.
If one of the above elements is not met, then this new law does not apply. If you sign the sworn statement that all of these elements apply, and it is later proven they do not, you may be prosecuted for perjury under F.S. 837.02 and/or be civilly liable by the person who was removed from the property (see #5 below).
6.) The removed person has the right to sue you.
Welcome to America… and Florida! Think of this as physics, where every action (even legal action) has an equal and opposite reaction. According to this new law, “(6) A person may bring a civil cause of action for wrongful removal under this section. A person harmed by a wrongful removal under this section may be restored to possession of the real property and may recover actual costs and damages incurred, statutory damages equal to triple the fair market rent of the dwelling, court costs, and reasonable attorney fees. The court shall advance the cause on the calendar.”
You may be certain that the person was lawfully removed, and all of the elements of this new law were satisfied. However, this does not stop unreasonable people from bringing unreasonable lawsuits when there is no basis in law or fact, especially pro se (self-represented). In a situation like this, you still must defend yourself and prove your case (and that the suit against you was frivolous) or risk a default judgment.
Conclusion
In conclusion, the specific facts of each case and situation will vary and determine whether this new law will apply to you and your property. This article is provided for informational purposes and should not be considered legal advice or the creation of an attorney-client relationship.
If you are in immediate danger due to an authorized person on your property, you should immediately contact law enforcement. In other situations, contacting an experienced attorney to advise you of your legal property rights is also a reasonable and wise choice.
by Chris Cervellera, Esq.May Day! Annual Reports for Florida Businesses are Due May 1, 2019
Do you remember when you were in 6th grade, and you woke up one day and your science project was due? You had months to complete the project, but the science fair is here and you still aren’t finished (…or, maybe you never procrastinated in middle school and this example is only applicable to me). Very similarly, Annual Reports are the forgotten science projects of the business world, and May 1st is the science fair.
Each year, businesses that are incorporated, formed, or organized in Florida are required to file an Annual Report to confirm their business’ information with the records of the Florida Department of State, Division of Corporations. Annual Reports are due between January 1st and May 1st of each year.
What is an Annual Report and why is it important?
First of all, it’s important to understand that an Annual Report is not a financial statement, and it is much simpler than a 6th grade science project. Filing the required Annual Report allows your business entity to maintain an “active status” with Florida’s Department of State. This allows you to continue conducting business as your entity.
Primarily, filing the Annual Report allows you to update and confirm your business entity’s information. Filing the Annual Report is required, whether or not there are changes to your business entity’s information. You can update/change the following information:
- Add, delete, or change the names and/or addresses of the officers, directors, managers, authorized members; and make changes to addresses only for any general partners.
- Change the registered agent and registered office address. The registered agent is the individual who is designated to accept service of process on behalf of your business entity. It can be you, an adult in your office, your lawyer, or another designated professional or individual (over the age of 18) located in the State of Florida.
- Change the principal office address and mailing address for the business entity.
- Add or change the Federal Employer Identification Number (FEIN or EIN).
What happens if you do not file your Annual Report by May 1st?
If you are late filing your Annual Report, even if it is one day late, the State of Florida will charge a $400 late fee to all for-profit corporations (Inc. or Corp.), limited liability companies (LLC), limited partnerships (LP) and limited liability limited partnerships (LLP). Non-profit corporations are not subject to the $400 late fee.
What else can happen if you delay filing your Annual Report even further?
If you do not file an Annual Report by the third Friday of September, your business entity will be administratively dissolved or revoked in the State’s records at the close of business on the fourth Friday of September (See Florida Statutes Chapters 607, 617 and 620, F.S.).
Having your business entity administratively dissolved or revoked can result in significant harm to your business and interests. If you continue to conduct business as your dissolved entity, you risk opening up you and your partners, shareholders, members, officers, and directors to personal liability and other issues. If your business entity has been administratively dissolved or revoked it can be reinstated. However, reinstatement requires submitting a reinstatement application and paying all associated fees at the time of submission (the reinstatement fee + annual report fees due).
Is there anything else you should know about Annual Reports?
Filing your Annual Report can be easy, but if you have questions or would like a professional to assist, consider contacting a Florida business law attorney. You can also have your business law attorney serve as your Registered Agent, allowing them to act quickly on your behalf if they are served with a law suit or other important notices on your behalf.
Additionally, the filing of your Annual Report is a good time to ensure that your business’ corporate records; such as board meeting minutes, resolutions, operating agreements, shareholder agreements, and other important business documents, are up-to-date and do not require any changes. Contact a Florida business law attorney to assist you with understanding and updating these various documents for your business.
Visit http://sunbiz.org to learn more and file your Annual Report.
by Chris Cervellera, Esq.New Florida Laws in 2019: New Law Requires Certain Condominium Associations to Maintain Websites & Portals
Condominium associations that are within the scope of this law must comply on January 1, 2019. What does that mean if you are a unit owner in a condominium association or if you are on the board of a condominium association?
by Chris Cervellera, Esq.New Florida Laws in 2019: Minimum Wage Increase
As of January 2019, Florida’s current minimum wage of $8.25 per hour will be raised by 2.5 percent to $8.46. Florida’s minimum wage rates are not set by a new law each year, that would be difficult to accomplish. Instead, the Florida Minimum Wage Act (FL Stat. 448.110) gives authority to the Florida Department of Economic Opportunity (DEO) to set the new rates each year based on the Consumer Price Index for Urban Wage Earners and Clerical Workers, not seasonally adjusted, for the South Region.
by Chris Cervellera, Esq.Introducing CERV LAW, PLLC – A Note from Chris Cervellera
I’m proud to announce the launch of my law firm, CERV LAW, PLLC in St. Petersburg. Through this firm, I will serve entrepreneurs, small businesses, individuals and professionals in St. Petersburg, Tampa Bay, and throughout Florida. By leveraging my legal skills and training, years of business and leadership experience, and commitment to creativity & innovation, I hope to transform the way legal services are offered to entrepreneurs, small businesses, and professionals. I’m also passionate about utilizing my legal skills to provide pro bono legal services in my local community. Learn more about my areas of focus.
What is “CERV”?
Well, “CERV” is a shortened version of my last name, the first four letters to be exact. During law school, a few of my friends started calling me “Cerv” (probably because they were too scared to pronounce my last name). Since then, the name has stuck. Each letter in CERV stands for a quality that defines my commitment to my clients through this firm.
CREATIVITY / ENERGY / RELIABILITY / VERSATILITY
Learn more about the “CERV” Commitment.
I’m Thankful…
This week is Thanksgiving. That makes it even more fitting for me to express my deepest thanks and gratitude to a number of people and organizations that helped make this possible. (Warning: The list is long, if this were a speech at an awards ceremony the music would probably cut me off.)
Family & Friends: I’d like to thank my family and friends who have supported and encouraged me throughout the establishment of my firm these past few months, and also throughout law school and the bar exam. My success is truly shared with you. I am humbled by your support and thankful to have all of you in my life.
Stetson University College of Law: I’d like to thank my classmates in the part-time program and my professors at Stetson Law. It feels weird saying this, especially publicly, but I actually miss law school. Specifically, I’d like to thank Chris Covell, Glenn Bukowski, and Steve Gower for being too scared (or too lazy) to say my last name and for giving me the nickname “CERV” (BTW… you have no rights in the name).
My TAG Alliances Team & Community: I’d like to thank Richard Attisha and Melisa Attisha, my employers, for allowing me to create this venture while maintaining my role as Executive Director at TAG Alliances (I’m not going anywhere). I appreciate your confidence and trust in me. Additionally, I’d like to thank the hundreds of lawyers, accountants, and advisors in TAG Alliances who I count as friends and mentors. I’d also like to thank Peter Appleton Jones and Anne Appleton Jones–words can’t express how thankful I am to you and your family.
A Few Mentors: I’d like to thank my longtime mentor Bob Sattin for his honest and trusted advice. Also, I’ve recently had the opportunity to connect with a number of local lawyers in St. Petersburg. Specifically, I’d like to thank Douglas Jackson. Doug is a fellow solo attorney and he has been more than valuable throughout this process in sharing his own experiences. I’d also like to thank my former professor and local St. Petersburg attorney, James Martin. It was actually Jim’s idea for me to start my own firm while Doug pushed me over the edge.
The Garrs: My sister and brother-in-law, Megan and Andrew Garr, are amazing cinematographers and photographers through their business, The Garrs. They are so amazing that they even made my mug look halfway decent in my professional photos haha.
The Florida Bar’s Practice Resources Institute “LegalFuel”: The leadership, both current and former, of the Florida Bar should be commended for putting together their Practice Resource Institute, now called LegalFuel. It is a comprehensive and invaluable resource for any lawyer in Florida who is looking to establish a firm.
The St. Petersburg Bar Association: Recently, I’ve attended a few events organized by the St. Petersburg Bar Association. In addition to the quality of the professionals, I’ve been impressed with the openness and welcoming spirit of the group. I look forward to getting more involved in this local community of peers.
Regions Bank: Since 2004, Regions has been where I have conducted my personal and business banking (back when they were still AmSouth!). I’d like to thank my local banker in St. Petersburg, Bruce Andrulis, for his positivity and his help with this venture along with my other personal & business banking needs. IMHO, Bruce is the best banker in St. Petersburg.
Thanks to everyone above and those who I didn’t mention. I look forward to making you proud through CERV LAW, PLLC. Please contact me if I can be of assistance to you, your family, your friends, or anyone in your professional circle.
–Chris Cervellera