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This year, hurricanes, with record rain, storm surges and winds, have resulted in severe damage to both commercial and residential buildings, mold contamination, and significant interruption to businesses in the impacted areas. Several Caribbean islands have been wiped away, Key West is unrecognizable, and Houston may have lost more than 150,000 homes. For most of us, luckily, the damage was less severe. My wife and I have leaks in our roof and elsewhere and lost a window (but gained an indoor tree). We lost power for about four and a half days. Friends in South Miami are still without power as of the writing of this post.

The legal implications of the hurricane aftermath extend well beyond mere rebuilding. Mold contamination and water intrusion must be addressed and properly remediated. Design and construction defects may be alleged to have exacerbated the extent of the damage from the hurricane. Employers may face workers’ compensation claims from employees and also may have vacation and lost wages concerns. Insurance coverage may be at issue. Construction costs may have escalated causing losses to builders or developers. Building permits and development approvals may expire due to delays caused by the hurricane. Condominium associations may not have sufficient reserves to act on emergency repairs. Construction licensing regulations may affect the ability to commence repairs and provide penalties for failure to engage properly certified contractors.

So what to do?

  • Make sure you and your family, employees and customers will be safe in your home or building.
    • Are there electrical system damage and risks?
    • Is the water safe to drink?
    • Is there a risk to the structural integrity of improvements?
    • Other Physical Hazards (don’t panic, but snakes and scorpions like piles of debris).
    • Contamination? Such as leaking petroleum tanks, chemical spills and the like.
  • Address potential health risks, whether mold or risky property conditions.
  • Secure your property and protect it from potential or further loss of property value.
  • Deal with Insurance.
  • Deal with Government Agencies such as FEMA
  • Deal with FP&L’s reimbursement programs.
  • Check with your mortgage lender. The lender may have the right to collect insurance proceeds and disburse the funds as repair and rebuilding proceed.
  • Only then commence to restore your property. Use only licensed and insured contractors. Where required by law, obtain all necessary permits and approvals. If you are part of a condominium or property owners’ association, make sure all Board approvals are obtained.
  • Get on with your life

Our lawyers have assisted clients in resolving insurance disputes, negotiating agreements in connection with assessment and remediation services, resolving design and construction defect claims,  implementing programs for addressing employee benefits, preparing hurricane and disaster response plans, and in finding their way through myriad environmental regulations.   In one recent example,  we resolved an insurer’s denial of coverage for water damage based on a theory that the building envelope was defectively designed or constructed and that the damage was not caused by a windstorm (as provided in the policy). By engaging the proper experts, a successful argument was made that the building envelope was properly designed and constructed and that it was indeed the hurricane-force winds that caused the water intrusion.

In another example, we assisted a client in requesting an extension of the expiration date for various development approvals that could not be met due to the direct delays of the hurricane, the difficulty in obtaining materials and the need to redesign to address increases in construction costs.

In addition to helping guide our clients in making proper recovery efforts, we are also focusing our clients’ attention on preventative measures to avoid future repeat damage and liability. We have found that many building and business owners have been hesitant to expend significant sums in prevention, in part to the belief that the recent hurricane landfalls in Florida were merely a fluke.  Whether global warming or a regular climatological cycle, it appears that the Atlantic hurricane season has been on an upswing that may continue for a decade or more. Proper preparation can lessen the business impacts and speed up recovery efforts.

 

Hispanic referee between arguing neighbors

Sometimes the facts of a case are just sad. A tenant recently came to see me because he was being evicted from the condo he was renting.  He was not going to contest the eviction.  There were only 30 days left on the lease any way and, one way or the other, he had to move.  He had found a new condo to rent, but when the new landlord did a background check, he found about the eviction and the circumstances surrounding it and denied the rental application.  Now, the tenant wanted some sort of revenge.

The circumstances leading up to the eviction stemmed from the complaints of a cantankerous neighbor. The neighbor was an elderly man who lived with his even older mother.  From the day the tenant and his fiancée moved into the condo, the neighbor had issues.  The mother accused the tenant and his fiancée of being drug dealers (she is a nurse and he is a medical technician and has an at home e-commerce business).  The neighbor began to call condo security and file noise complaints.  The first complaint was about 2 months after the tenant moved in.  The neighbor complained about “loud music” at 6:00 p.m. on a Saturday.  Security responded.  When they arrived, they could not hear any music, but asked the tenant to keep it down.  The next complaint was filed for loud talking on the balcony at night.  Security was again dispatched.  Several similar complaints were filed and, at least one time, the police were called.  The police found no disturbance and did not file a report.

However, because of the number of complaints, the condominium association determined that the tenant was in violation of condo rules and advised the landlord, the owner of the condo unit that it had to evict the tenant. If landlord failed to evict tenant, association would fine landlord.  Therefore, landlord filed the eviction.

Tenant asked me if he could sue the association for defamation. However, everything that the association would have told a potential landlord was true – there were numerous complaints against the tenant and an action to evict was pending.  It didn’t matter if the neighbor’s complaints were not true.  We turned our attention to the neighbor.  The neighbor’s harassment of the tenant was the direct cause of the eviction and the subsequent denial of the tenant’s denial of a new lease. Neighbor was the cause of all of tenant’s problems.  Was there anything that could be done for the tenant?  What damage had tenant suffered?

Tenant expressed that he only wanted his reputation back. The eviction was damaging to him and his fiancée.  We discussed whether we could get some letter from the neighbor explaining that his false accusations led to the eviction.  But what leverage did we have to get such a letter?  A lawsuit perhaps?  The theories were sparse:  tortious interference with contract and slander and defamation.  These would be costly to prosecute and very difficult to prove.  And worst of all, a “crazy” defendant is a dangerous defendant.  Moreover, it really is not a good idea to use the court system for this purpose – to extract an apology.  Unless the tenant was willing to go all in on a lawsuit, we couldn’t take the case.

Looking back, my advice would have been, had the tenant called me as the neighbor was harassing him, to fight the complaints with the association at the time that they were made. Set the record straight as quickly as possible.  Make sure that the security reports were thorough and accurate.  If this were done, the association would have had no grounds to force the landlord to evict and, as the neighbor continued to complain, the association would have eventually stopped listening.  Sadly, one cranky neighbor affected another person’s ability to occupy and enjoy one condo and to rent another.  Tenant should have fought back early and hard.

 

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