Your home is often your most important asset. Not only does it represent a large cost, but it also carries so much more value than just monetary worth. Suffering damage or loss of a home is a stressful and traumatic event. Homeowner’s insurance is meant give us peace of mind that we are protected in these instances, whether it be from fire, water, hurricane, or other covered loss. The cost of repairing these damages may run into the tens of thousands of dollars. Your family may also have to temporarily relocate while the damage is repaired. The last thing you need is to worry about whether your insurer is going to give you fair value for your claim.
If your home has suffered a loss, you should document all of the damage if the property is safely accessible. Take photos of the property. It is also a good idea to keep an accurate record of all of your personal belongings so that if anything is destroyed, you will have proof to show your insurer. You should file a claim with your insurer as soon as possible, to avoid any allegation that you did not provide prompt notice. Ask the company completing the repairs to take photos and to keep any potential evidence (such as a broken pipe or faulty supply line) so that you can provide it to your insurer should they request it.
We have experience with homeowner’s claims and can help walk you through the process. We will conduct an inspection of your property, can assist you in filing your claim, and will negotiate with your insurer and take any other necessary steps to ensure that you are paid fair value for your claim.
An insurance policy is a contract between the insurance carrier (“insurer”) and the policy holder (“insured”). Under the contract, the insured agrees to pay a premium, and in return the insurer agrees to provide certain benefits (usually money payment) in the event of a covered loss and as defined in the contract (the policy). These benefits are meant to put the insured back in the position they were in before the loss. Accordingly, both parties are bound by the terms of the contract and must act in good faith. If the insured files a legitimate claim but the insurer denies it improperly or offers less than the claim is actually worth, then the insurer may have acted in bad faith.
The purpose behind Florida’s Bad Faith Statute (Fla. Stat. 624.155), is to ensure that Florida’s insurers act reasonably in the discharge of their fiduciary duties to their insureds. If they do not, then they can face hefty penalties as a result.Factors that play into a bad faith claim include whether the insurer undertook a prompt investigation of the loss, communicated to the insured the material events of the adjustment process, and whether the insurer acted reasonably.
If an insurer acts in bad faith, then the insured may be able to file a claim seeking damages resulting from that bad faith, including the insured’s contractual damages, as well as extra-contractual damages such as interest, costs, and reasonable attorney’s fees. In some instances, the insurer’s actions are grievous enough to warrant additional damages meant to punish the insurer for its conduct (“punitive damages”).
However, there are prerequisites to being able to file a statutory bad faith claim. First, an insured must provide the insurer with sixty (60) days written notice during which time the insurer may correct the alleged violation without penalty. Additionally, there must be a determination of contractual liability against the insurer as well as a determination of the amount of contractual damages.
Water damage makes up the large majority of homeowner’s insurance claims in Florida. They are generally broken down into two categories: flood damage and leak damage. Flood damage involves rising water coming from outside the home, usually as the result of natural events such as hurricanes. Leak damage can be caused by broken or damaged plumbing or an overflowing appliance inside the home which leaks and causes damage.
Water damage claims can be complicated. Often times, a leak can exist for a period of time, hidden in a wall or behind a cabinet. You may not discover the damage until it has spread significantly. Even if the cause of a loss seems clear to you, your insurer may still deny your claim or offer only a partial settlement. Your insurer may claim that the damage was preexisting, that it was not caused by a covered loss, or that you did not timely provide notice to your insurer.
Further, your insurance policy may contain exclusions for damage caused by constant or repeated seepage of water, or for other causes of damage. This does not necessarily mean that the damage is not covered. Insurance policies can be tricky when it comes to determining whether a water loss is covered. If you believe that the damage should be covered, but your insurer has denied your claim, you should consult with a legal professional who is trained in interpreting insurance policies.
The best way to deal with water damage is to take proactive steps to avoid it in the first place. Here are some things you can do to protect your home from water leaks. First, learn the location of the water shutoff valves in your home. That way, if a pipe suddenly bursts and begins gushing water, you will be ready to stop it before it can cause any additional damage. Second, keep an eye on your utility bills. An unusually high water bill may be an indicator of a hidden leak. Also, turn off the water to your home when you are traveling. Finally, you should regularly inspect the supply lines and fittings to your appliances, sinks, and fixtures, to ensure that they are not rusting or leaking.
An Assignment of Benefits (“AOB”) is used by insureds to assign the right to collect insurance benefits from the insurer to a third party. AOB’s are commonly used when time is of the essence and the insured does not have time to file a claim with his or her insurance company and wait for them to respond. The most common situation involves emergency water damage. The insured can contact an emergency mitigation company, sign an AOB, and the company can begin remediating the damages immediately without first having to wait for the insurance company to confirm coverage or inspect the property. The insured gets peace of mind that the damage will be repaired, and the remediation company can seek compensation directly from the insurer.
Another benefit of the AOB is that the third party will take care of filing the claim for insurance benefits for the cost of the services provided. The insured is thus relieved of the burden of having to deal with the insurer, which may be unwilling to pay the full value of the claim. The third party essentially becomes the insured for purposes of that loss.
Although AOB’s have been unpopular with many insurers, Florida courts have consistently upheld the validity of the AOB, most recently in the case of One Call Property Services, Inc. v. Security First Insurance Company, No. 4D14-424 (Fla. 4th DCA, May 20, 2015).
The rights of residential landlords and tenants are codified in Florida Statutes, Chapter 83. However, these rules can be very confusing, and which provision applies to your case may vary depending on the type of lease agreement, when your rent is due, and a litany of other factors. Below are a couple tips based on the most common issues we have seen. This information is intended only as a guide and should not be construed as legal advice or the creation of an attorney-client relationship.
I don’t have a written Lease Agreement. What are my rights?
Whether you have a written or unwritten (oral) lease, the Florida Landlord-Tenant Act contains rules regarding the rights and duties of landlords and tenants which must be followed. These rules include everything from how much time you must give someone before terminating a tenancy, procedures for withholding rent, and for holding and returning a security deposit. Of course, we always recommend that you get any lease agreement in writing, in case something does go wrong and you are forced to file a lawsuit. Without a signed Agreement, the court will have to consider the testimony of two people which may vary greatly! You can save yourself a lot of headache by signing a clear and concise lease agreement setting forth the parties’ expectations.
My tenant has not paid rent. Can I evict them?
Generally, yes, non-payment of rent is a valid basis for eviction. (See Fla. Stat. 83.56(3)). There are some exceptions, such as if the tenant properly withheld rent as a result of the landlord’s failure to maintain the premises. If the tenant fails to pay rent when due, then you must provide them with a written three day notice demanding that the tenant pay rent or vacate the premises. The three day notice may only demand the amount of rent due, (cannot claim late fees, unless defined as rent in the lease) and if the tenant pays the full amount within three days of the notice (excluding legal holidays and weekends) then the eviction will not go forward. On the fourth day, the landlord may file an eviction lawsuit in the county where the property is located and have the tenant served with a five day summons for possession of the property. The tenant then has five days from the date of service of the summons to file an answer with the clerk and serve a copy on the landlord explaining why the landlord is not entitled to the eviction. It is also crucial that the tenant pays the amount of rent claimed due by the landlord into the court’s registry by the fifth day. Unless the tenant is claiming that rent was already paid in full, or if the tenant files a motion setting forth why the amount claimed by the landlord is incorrect (known as a motion to determine rent), failure to deposit the money into the registry will entitle the landlord to a default judgment of eviction. Once that is entered, the landlord will likely be able to obtain possession of the property in as little as two to three days. If the tenant deposits the rent into the registry and files a response to the complaint, then the case will proceed to a final hearing where both parties are able to present evidence and witnesses supporting their reasons why the eviction should/should not be granted. If a party hires an attorney to represent them and they prevail, that party will be entitled to have his/her reasonable attorney’s fees paid by the losing party (Fla. Stat. 83.48).
My Landlord just terminated my oral lease agreement. How much time do I have to move?
This question comes up more often with oral leases, because written leases are more likely to have an end date, so both parties know when the lease will terminate. However, often times a relationship may sour or the landlord wants to sell the property, and he/she tells the tenant they have to vacate immediately. An oral lease may still have a definite time period, but if it does not, the amount of time you have to move depends on how often you pay rent. If, for instance, you pay rent once a month, then you are considered to be in a “month-to-month” tenancy. If either the landlord or tenant wishes to terminate a month-to-month tenancy, they have to provide no less than 15 days’ notice from the end of any monthly period. However, if you pay rent on a weekly basis, then seven days’ notice is all that is required. In either situation, the notice must be written. Please see Fla. Stat. 83.57 for more information.
I want to make a claim against my tenant’s security deposit. What do I have to do?
The security deposit is one of the landlord’s best tools to protect themselves from financial loss caused by damages left after a tenant vacates the property. Generally, a landlord can use the security deposit to repair any damages caused by the tenant, excluding normal wear and tear. Fla. Stat. 83.49 sets forth explicit instructions for how to make a claim against a security deposit. Failure to follow these instructions may effectively waive any claim you have on the deposit, although it will not preclude you from making a claim for damages against the tenant. However, you will first have to return the deposit, and then you will have to go about seeking collection of the deposit from the tenant, who may not be willing to pay up. Pursuant to the Statute, a landlord has 15 days from the date the tenant vacates the premises to return the deposit to the tenant in its entirety if the landlord does not intend to impose a claim on it. If the landlord does want to make a claim on the deposit, then the landlord has 30 days from the date of vacating to send notice to the last known address of the tenant, via certified mail, of the claim against the deposit. The notice must contain specific information, including the amount the landlord intents to keep, and the reason why the landlord is imposing a claim. The tenant then has 15 days from the date of receipt of the notice to object to it. If the tenant does not object, then the landlord is free to deduct the amounts set forth in the notice and return the remainder (if any) to the tenant.
My landlord refuses to make needed repairs. What can I do?
This depends on several factors. First, if you have a written lease, then chances are it will set forth what is the responsibility of the tenant vs. what the landlord has to fix. For instance, you lease may state that the tenant is responsible for all repairs up to $100.00. Thus, if there is a problem with the property, the tenant is responsible to get it fixed, provided the repair costs less than $100.00. Landlords have a duty under Fla. Stat. 83.51 to maintain the premises and to comply with all applicable building, housing, and health codes. Similarly, tenants also have a duty under the statute to maintain the premises in a clean and sanitary condition.
If the landlord fails to abide by this duty, then a tenant has several options, depending on the severity of the failure and the effect on the property. If the landlord materially fails to comply with its duties, then the tenant may, after providing written seven days’ notice of the failure and the tenants’ intent to terminate the agreement if the landlord does not complete the needed repairs, terminate the lease agreement and vacate the premises. If the failure to act does not render the property uninhabitable and the tenant remains in possession of the property, “the rent for the period of noncompliance shall be reduced by an amount in proportion to the loss of rental value caused by the noncompliance.” (Fla. Stat. 83.56)