Rental Agreement Provisions


Section 83.46(2), F.S.

If the rental agreement contains no provision as to duration of the tenancy, the duration is determined by the periods for which rent is payable (week-to-week, month-to-month, etc.). All other terms are either those specifically addressed by law or those that are part of the agreement between you and your landlord.

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 Erum Kistemaker is the managing partner with the law firm, Kistemaker Business Law Group. Erum is admitted to practice law in Florida, New York, England, and Wales, focusing her practice on business law, condo HOA, construction and real estate law, corporate and commercial litigation and landlord/tenant law. You can reach Erum at (386)310.7996 or ekistemaker@e-kbusinesslaw.com. 

Disclaimer: This article is for general informational purposes only and should not be construed as legal advice or a legal opinion on specific facts or circumstances nor a solicitation of legal business. You are urged to consult an experienced lawyer concerning your particular actual situation and any specific legal questions you may have. No attorney-client relationship attaches as a result of any exchange of information.

Physician Employment Agreement Considerations

Signing a new employment agreement is exciting for most people.  However, it is important that numerous careful considerations be made prior to signing, to ensure that you are properly protected and receive the compensation that you deserve.  These considerations are made during the negotiation process.  While these tips are more geared towards Hospital/Physician type employment agreements, anyone can gain insight from this information.

Restrictive Covenants

Arguably the most important provision of an employment agreement, aside from the compensation portion, is the restrictive covenant.  This covenant dictates a period of time by which an employee is prohibited from competing against an employer after termination from employment.  Negotiating a restrictive covenant is important because it will keep a physician from the ability to practice where he/she developed their reputation.  Should the employer be unwilling to negotiate, the physician always has the option of adding a clause that should the employer be terminated without cause, the restrictive covenant does not apply.  Please note, however, that the Courts are often reluctant to enforce unreasonable restrictive covenants for physicians because the Courts do not want to stifle a patients’ access to health care.

Duration of Agreement

It is important to note the duration of the agreement and know how you can get out of it.  Duration typically ranges between one and three years.  This is generally an anticipated duration of the employment relationship, and typically comes with a right to terminate the agreement without cause between 30 and 90 days’ notice.  Physicians should consider requesting removal of a “without cause” termination right for both parties.  This ensures that the parties will be bound for the stated duration to one another.  Alternatively, the right to terminate “without cause” should be made upon identical notice periods.  This is important as a physician may want to leave an employment relationship and grow his/her practice.

Occurrence-Based Medical Malpractice Insurance

Typically, physician employees can expect their employer to purchase medical malpractice insurance coverage for them, but the type of policy is often left unaddressed.  That being said, there are two main types of medical malpractice policies: (1) occurrence-based; and (2) claims-made.  Occurrence-based policies cover employees for acts that occur during the coverage period.  Claims-made policies cover employees for claims that arise and are reported during the coverage period.  Occurrence-based policies cover more, and thus are more expensive.  Because of this, often physician employers do not purchase such insurance.  If your employer is unwilling to purchase occurrence-based coverage, then you might look into requesting the employer pay for physician’s “tail” coverage.

Benefits

Employee benefits, rather than compensation, may be very important to a young physician’s future. These benefits include continuing medical education courses, attendance at industry conferences, etc. These costs should not be borne by the physician, and as such, many employers will allocate paid time for such expenses.  Additional benefits include state licensing fees, medical society fees, beeper/cell phone charges, and automobile leasing, to name a few.


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 Erum Kistemaker is the managing partner with the law firm, Kistemaker Business Law Group. Erum is admitted to practice law in Florida, New York, England, and Wales, focusing her practice on business law, condo HOA, construction and real estate law, corporate and commercial litigation and landlord/tenant law. You can reach Erum at (386)310.7996 or ekistemaker@e-kbusinesslaw.com. 

Disclaimer: This article is for general informational purposes only and should not be construed as legal advice or a legal opinion on specific facts or circumstances nor a solicitation of legal business. You are urged to consult an experienced lawyer concerning your particular actual situation and any specific legal questions you may have. No attorney-client relationship attaches as a result of any exchange of information.

Music Licensing


YOU PROVIDE GREAT MUSIC FOR YOUR PATRONS
DID YOU KNOW YOU MAY NEED A LICENSE TO DO SO?

So you own a nice restaurant and/or bar that provide both live and recorded music.  Are you responsible for obtaining the necessary ASCAP license for use of the music licensed by ASCAP?

YES!  And you could be liable for large sums if you don’t settle up right away.

First, what is ASCAP.  ASCAP stands for the American Society of Composers, Authors and Publishers (ASCAP) and it is a membership association of U.S. composers, songwriters, lyricists, and music publishers of every kind of music. Through agreements with affiliated international societies, ASCAP also represents hundreds of thousands of music creators worldwide. ASCAP protects the rights of its members by licensing and distributing royalties for the non-dramatic public performances of their copyrighted works. ASCAP's licensees encompass all who want to perform copyrighted music publicly.  These days, most musicians are members of ASCAP and register their music for licensing.

Recently, a restaurant and lounge owner in California challenged ASCAP’s attempts to collect money for songs played using their CD system and/or by live bands.  The restaurant was sued and they lost big time.  The case was appealed and the judgment was upheld noting that a vicarious infringer (the restaurant) profits from the direct infringement (CD or live band) while declining to exercise its right to stop or limit the infringement.  It was also noted that the songs played were popular and did not require scientific, technical or other specialized knowledge to identify and that in some cases the live band even had announced the song titles they covered.  So the bottom line is, if you are going to play music in your establishment for the general public, make sure you have the proper licenses and authority to do so.  Finally, copyright law is federally regulated and thus federal decisions in California (or any state) do effect rights nationwide.
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 Erum Kistemaker is the managing partner with the law firm, Kistemaker Business Law Group. Erum is admitted to practice law in Florida, New York, England, and Wales, focusing her practice on business law, condo HOA, construction and real estate law, corporate and commercial litigation and landlord/tenant law. You can reach Erum at (386)310.7996 or ekistemaker@e-kbusinesslaw.com. 

Disclaimer: This article is for general informational purposes only and should not be construed as legal advice or a legal opinion on specific facts or circumstances nor a solicitation of legal business. You are urged to consult an experienced lawyer concerning your particular actual situation and any specific legal questions you may have. No attorney-client relationship attaches as a result of any exchange of information.

Our Firm Is Listed In On The Move!

Kistemaker Business Law Firm was mentioned in The Florida Bar newsletter recently, announcing Thomas J. Tollefsen and Brandy A. Benesch recent promotions within the firm. .

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 Erum Kistemaker is the managing partner with the law firm, Kistemaker Business Law Group. Erum is admitted to practice law in Florida, New York, England, and Wales, focusing her practice on business law, condo HOA, construction and real estate law, corporate and commercial litigation and landlord/tenant law. You can reach Erum at (386)310.7996 or ekistemaker@e-kbusinesslaw.com. 

Disclaimer: This article is for general informational purposes only and should not be construed as legal advice or a legal opinion on specific facts or circumstances nor a solicitation of legal business. You are urged to consult an experienced lawyer concerning your particular actual situation and any specific legal questions you may have. No attorney-client relationship attaches as a result of any exchange of information.

Association Board:Contract Checklist

Before entering into a contract with a vendor, boards should make sure they cover each of the following points:

1. License. Verify that the contractor is licensed.

2. Insurance. Make sure the contractor carries workers' compensation insurance, provides proof of insurance and names the association as additional insured. Made sure the contractor's insurance does not contain a multi-family or condo exclusion.

3. Governing Documents. Make sure the contract does not violate any limitations in the association's governing documents.

4. Legal Review. Have legal counsel review all contracts with attention to particular contract clauses.

Following are some issues and clauses that need to be reviewed in all agreements:

Parties. The opening paragraph of a contract typically names the parties to the agreement. The contract should not name the directors as parties. Instead, it should be the corporate name of the association. If directors are listed as parties to the agreement, they could be named personally in any litigation that might result because of any alleged breach of the contract. The contracting party is the corporation which the directors sign on behalf of the corporation.

Scope of Work. The scope of work must be clearly defined. An ambiguous or incomplete description of the project gives rise to disagreements and makes it difficult to hold the vendor accountable for his work.

Payment Schedule. Define the payment schedule. Generally, payments should be phased so that monies are paid to the contractor as work is completed. As a rule, full payment should not be paid up front, since it exposes the association to significant risk of loss if the contractor does not perform. Normally, a percentage is paid up front so the contractor can purchase materials and begin work. A percentage, usually 10%, is retained by the association at the conclusion of the work until everything is signed-off.

Insurance. Define the types of insurance and minimum limits the vendor must carry and whether the association is named as additionally insured on the policy.

Indemnity Provision. Vendor agrees to protect the association if it gets sued because of some act or omission by the vendor.

Time for Performance. If performance dates and times are important, put them in the contract.

Permits and Licenses. Vendors must be licensed and pull permits whenever appropriate and provide the association with copies of both.

Warranties. If the vendor promises to stand behind his/her work, be sure to put it in the contract. You should also have the manufacturer's warranty against defects in the products (not necessary for service providers).

Mechanics Liens. Mechanics lien provisions should protect the association in the event the vendor fails to pay his subcontractors or material suppliers.

Termination Clause. If work is not performed satisfactorily, there should be a provision for terminating the agreement.

Evergreen Clause. The contract automatically renews if notice is not given to the vendor of the association's intention to not renew the agreement.

Escalator Clause. The association's payments to the vendor automatically increase each year. The increases may be predetermined or may be linked to the CPI.

Alternative Dispute Resolution. An ADR provision is often included in contracts so as to keep litigation costs to a minimum and to speed resolution of any disputes.

Attorneys' Fees. Without an attorneys' fee provision, typically each side bears their own fees and costs.
RECOMMENDATION: Boards should have the association's legal counsel review all contracts before they are signed by the board. Contact us for assistance in preparing and enforcing contracts.
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 Erum Kistemaker is the managing partner with the law firm, Kistemaker Business Law Group. Erum is admitted to practice law in Florida, New York, England, and Wales, focusing her practice on business law, condo HOA, construction and real estate law, corporate and commercial litigation and landlord/tenant law. You can reach Erum at (386)310.7996 or ekistemaker@e-kbusinesslaw.com. 

Disclaimer: This article is for general informational purposes only and should not be construed as legal advice or a legal opinion on specific facts or circumstances nor a solicitation of legal business. You are urged to consult an experienced lawyer concerning your particular actual situation and any specific legal questions you may have. No attorney-client relationship attaches as a result of any exchange of information.

Blog Homeowner Association's Governing Documents Expired MRTA

HAS YOUR HOMEOWNER ASSOCIATION’S GOVERNING DOCUMENTS EXPRIED DUE TO THE MARKETABLE RECORD TITLE ACT:
Whether an association’s declaration of covenants were filed and recorded more than thirty (30) years ago and whether an association has taken no action to extend its duration, the covenants may have been extinguished under the Marketable Record Title Act.

Additionally, Part III of Chapter 720 uses the broader phrase "ceased to govern" to describe the condition of the affected covenants, rather than "expired" or "extinguished". It will probably be necessary to research the covenants and the title history of the lots in the subdivision in order to determine whether the covenants have truly ceased to govern any or all of the lots. There are a number of factors that may affect their status, including amendments, restatements, automatic extension clauses, and references to the covenants in individual deeds. Unless you or your association has learned from a judicial determination that the covenants have ceased to govern, it will be necessary to hire a private attorney if you wish to obtain legal advice on whether the covenants for your subdivision have ceased to govern for any reason, including expiration or extinguishment. The Department of Community Affairs does not issue legal opinions.

A common source of confusion involves the difference between the expiration of covenants under the Marketable Record Title Act and the administrative dissolution of a homeowners' association for failure to file annual reports and pay registration fees to the Department of State's Division of Corporations.

These are separate issues that do not necessarily occur together. Most homeowners associations are corporations, and all Florida corporations must comply with the reporting and fee requirements of the Department of State's Division of Corporations. If a homeowners' association fails to comply with the reporting and fee requirements, the Division of Corporations may declare it to be administratively dissolved and inactive as a corporation. This does not mean that the covenants for the subdivision have expired. Usually all that is necessary to restore the homeowners' association to active status as a corporation is to file the missing reports and pay the outstanding fees to the Division of Corporations. Information about a corporation's status with regard to annual reports and fees can be obtained from the Division of Corporations website.

Under MRTA, there is a 30-year time limit that is established from the filing of the root of title that will impact the Declaration of Covenants and Restrictions, which are recorded for Homeowners' Associations. If within 30 years of the recording of the Declarations of an HOA, a Notice of Preservation is not filed, MRTA would extinguish the Association’s documents, more than likely taking away their authority to collect assessments, file liens, and enforce rules and regulations ranging from architectural review committees to use of amenities. If such notice is not filed within the 30 year time frame, Florida Statue 720 sections 403 to 407111 does allow for revitalization of an HOA’s documents. This process is much more difficult and time consuming compared to the filing of the Notice of Preservation.

There are a few things to note about MRTA. Even if your Documents state they are valid until a certain date set forth in the Docs, the 30 year window under MRTA will override any sort of expiration date that is found in the Docs. If any sort of adjustment to the Docs were made, whether through amendment, restatement or even filing completely new ones, a Notice of Preservation must still be filed to keep the Docs alive. Please keep in mind that this only affects HOAs and not Condominium Associations, since most Condo recordings reference the Documents in the legal descriptions the properties in the recordings

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Erum Kistemaker is the managing partner with the law firm, Kistemaker Business Law Group. Erum is admitted to practice law in Florida, New York, England, and Wales, focusing her practice on business law, condo HOA, construction and real estate law, corporate and commercial litigation and landlord/tenant law. You can reach Erum at (386)310.7996 or ekistemaker@e-kbusinesslaw.com. 

Disclaimer: This article is for general informational purposes only and should not be construed as legal advice or a legal opinion on specific facts or circumstances nor a solicitation of legal business. You are urged to consult an experienced lawyer concerning your particular actual situation and any specific legal questions you may have. No attorney-client relationship attaches as a result of any exchange of information.

Community Association beginning in July

Community Associations have some changes to look forward to with the HB 807 Bill.  The HB 807 Bill was been ordered on April 29, 2014 which includes language that states an Association is not considered a “previous owner” when taking delinquent parcels in foreclosures or by deed in lieu of foreclosure.  This is important news for Community Associations, as this allows the Association to demand past due assessments from the owners that take title to the property after the Association.

While this language was previously added to Florida Statute 720 for Homeowners Associations, Florida Statute 718 for Condominium Associations has no such language.  Effective July 1, 2014, this amendment will likely be considered a great success to many Community Associations in Florida.

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 Erum Kistemaker is the managing partner with the law firm, Kistemaker Business Law Group. Erum is admitted to practice law in Florida, New York, England, and Wales, focusing her practice on business law, condo HOA, construction and real estate law, corporate and commercial litigation and landlord/tenant law. You can reach Erum at (386)310.7996 or ekistemaker@e-kbusinesslaw.com. 

Disclaimer: This article is for general informational purposes only and should not be construed as legal advice or a legal opinion on specific facts or circumstances nor a solicitation of legal business. You are urged to consult an experienced lawyer concerning your particular actual situation and any specific legal questions you may have. No attorney-client relationship attaches as a result of any exchange of information.