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Real property, probate & trust law.

HB 315--Building Remediation and Assessment

This bill creates [subsection]501.933 and 501.934, F.S. to provide requirements for mold assessors and mold remediators and [section] 501.935, F.S., to provide requirements for home inspectors. It provides that home inspectors are not regulated by any state agency, but violations of the section may be actionable as an unfair and deceptive trade practice under ch. 501, part II, F.S. It provides for: Exemptions to the section for certain licensed and regulated professionals; criminal penalties for certain violations of the section; a requirement to maintain commercial general liability insurance in the amount not less than $300,000. The statute of limitations as provided in ch. 95, F.S., governs actions to enforce an obligation, duty, or right arising under the section. It provides that home inspectors are not required to provide estimates related to the cost of repair of an inspected property. The bill creates [subsection]501.933 and 501.934, F.S., to require certification in mold assessment or mold remediation, depending on the field in which a person or business practices. This certification requirement may come from a non-profit organization that focuses on indoor air quality or industrial hygiene or from a community college or university that provides training or education in mold assessment or mold remediation. Provisions for noncontracting mold remediation allow for the removal, cleaning, sanitizing, demolition, or other treatment of mold as long as the work does not require a license under ch. 489, F.S., relating to construction and other contracting. Exemptions to the certification requirement are provided to specified groups. These groups include residential property owners, an owner or tenant, or a managing agent or employee of an owner or tenant, who performs mold assessment on the owned or leased property, an employee of a licensee who is under the direct supervision of the mold assessor performs mold assessment or remediation. The bill also exempts engineers, architects, interior designers, landscape architects Division I and Division II contractors licensed under ch. 489, F.S., insurance adjusters, and individuals in the manufactured housing industry who are licensed under ch. 320, F.S. The bill also exempts authorized employees of the United Slates, state, city and county governments performing mold assessment or mold remediation within the scope of their employment. Mold assessors are required to maintain a mold-specific insurance policy not less than $1 million, and noncontracting mold remediators are required to maintain a liability insurance policy with a mold pollution rider not less than $1 million. The bill also provides civil and criminal penalties for violations of the provisions relating to mold assessment and mold remediation. If approved by the governor, these provisions take effect January 1, 2006.

HB 113--Construction Contracting

The bill provides substantive and technical revisions to the state's construction lien law. Specifically, the bill makes a payment bond for a public works project unenforceable if it restricts the classes or persons as defined in [section] 713.01, F.S, protected by a construction bond or restricts the venue of any proceeding related to the bond. The bill increases the maximum administrative fine for violations that the Construction Industry Licensing Board and the Electrical Contractors' Licensing Board may assess a licensee from $5,000 to $10,000. It reduces the type size for new residential construction contract lien warnings from 18 to 14 point type and clarifies the rights associated with the notice. The bill copies unlicensed contracting provisions under ch. 489, F.S., to ch. 713, F.S., to preserve the lien rights of suppliers and other properly licensed subcontractors on the same project. It extends a proper payment defense to owners who contract for subdivision improvements and addresses service of notice required for subcontractors and suppliers to preserve their lien rights, and requires lien service on the property owner. The bill allows building departments to utilize e-mail, facsimile, or personal delivery for required service of lien information. It provides clarification of time period in which to commence an action to enforce a claim against a payment bond and clarifies provisions relating to lien transfer bonds. It provides that circuit court jurisdiction to hear lien law cases is not exclusive where the dollar amount would allow a county court to hear the case. It restructures the penalty provisions for misapplication of construction funds. The bill clarifies notice procedure for lenders who are required to serve a notice to an owner when the lender disburses funds to the owner. If approved by the governor, these provisions take effect October 1, 2005.

HB 1459--Commercial Real Estate Liens

The bill creates parts III and IV of ch. 475, F.S., to create the "Commercial Real Estate Sales Lien Act" and the "Commercial Real Estate Leasing Commission Lien Act," respectively. The Commercial Real Estate Sales Lien Act creates a lien for a broker's commission upon the real estate owner's net proceeds from the disposition of commercial real estate. This lien does not attach to any interest in the real property. The "Commercial Real Estate Leasing Commission Lien Act," creates a lien for a broker's commission upon the real estate owner's interest in commercial real estate for any commission earned by the broker pursuant to a brokerage agreement with respect to a lease on commercial real estate. The bill requires that the broker disclose the lien at or before the owner executes the brokerage agreement for sale or lease of commercial real estate. The broker may not enforce a lien for a commission unless the disclosure is made. The bill provides the form for the sales and leasing commission disclosures. The broker is also required to provide the owner of the commercial real estate with a notice that states the amount of the claimed sales or leasing commission. This notice must be signed and sworn to or affirmed by the broker under penalty of perjury before a notary public. The bill also specifies the information that must be contained in the notice and the statements that must be provided in the notice. The bill also provides a form for the required commission notice. The Commercial Real Estate Sales Commission Lien Act also provides that the broker may record the commission notice in the county or counties where the commercial real estate is located. A notice of a real estate sales commission expires one year after the date of recording, unless a one-year extension is filed within the last 60 days before expiration. The closing agent must reserve from the owner's net proceeds an amount equal to the commission claimed by the broker in the commission notice. The closing agent is required to seek adjudication of the rights of the parties with respect to disputed proceeds held in escrow, and may reserve any costs incurred, including attorneys' fees. The broker or owner may file a civil action in the county or circuit court if there is a dispute over the commission. A prevailing party of such a court action is entitled to costs and reasonable attorneys' fees of the owner and the closing agent. A buyer's broker is not entitled to a lien against the owner's net proceeds, unless a contract provides for a buyer's broker to receive a fee. The Commercial Real Estate Leasing Commission Lien Act also provides that if the commission is to be paid in installments, the lien notice is valid only to the extent that any commission remains unpaid to the broker. A lien expires two years after recording unless the broker commences a foreclosure action. If the broker claims an automatic renewal commission, then the lien notice expires ten years after recording unless the broker commences a foreclosure action. The lien notice may be extended for successive 10-year periods. However, an owner may attempt to shorten the time by filing a notice of contest of the broker's lien. A broker may enforce a lien for a leasing commission through a foreclosure suit in the same manner as if the lien notice was a mortgage recorded against the commercial real estate. If an owner disputes the commission, then the owner may file a civil action to discharge the lien. The prevailing party in a foreclosure or civil action is entitled to costs and reasonable attorney's fees. A lien that has been recorded may be transferred to a security by filing a sum with the clerk of the court or filing a bond with the clerk in an amount equal to the amount claimed and a certain sum to cover attorneys' fees. An owner may also subordinate, with or without the broker's consent, a lien claimed by the broker for an automatic renewal commission in favor of the holder of a subsequent mortgage. If approved by the governor, these provisions take effect October 1, 2005.

HB 565--Mobile Homes

The bill states that the requirement for the committee, which is already established under law, to disclose rents charged by comparable parks is to encourage a dialogue concerning the reasons for the rent increase and to encourage the home owners to evaluate and discuss the reasons with the park owner. The bill specifies as an additional statutory purpose and intent that the current provisions are not intended to be enforced by civil or administrative action and that the meetings are intended to be conducted as settlement discussions prior to mediation or litigation. The bill specifically allows the park owner and the home owners to exchange new or additional information during the discussion process or to change positions relating to the rent increase. However, it prohibits the park owner and home owners from changing any information that was initially provided at the meetings. The bill prohibits compensation to be paid out of the Mobile Home Relocation Trust Fund to a home owner who is under an eviction action for nonpayment of rent. The action for nonpayment of rent must have been initiated by the park owner prior to issuing the notice of intent to change the use of the mobile home park. The bill allows for the payment of reasonable attorneys' fees and costs to the prevailing party in an action to enforce payment from the Mobile Home Relocation Trust Fund. The bill designates the Florida Mobile Home Relocation Corporation as an agency of the state and employees and directors as officers, employees, or agents of the state for purposes of the application of sovereign immunity provisions. Approved by the governor on May 26, 2005, these provisions take effect upon becoming law.
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Publication:Florida Bar News
Date:Jul 1, 2005
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