Disaster Relief Pro Bono Training
Disaster relief cases can span the spectrum of legal issues.
Bay Area Legal Services' Disaster Relief Team has compiled several resources to help volunteer attorneys familiarize themselves with some of the most common problems facing our disaster relief clients. If you are interested in learning more about pro bono training opportunities or would like to take on a disaster relief pro bono case, please contact Jason Susalla – jsusalla [at] bals.org.
The pro bono training resources include five videos and links to additional resources:
Disaster Relief Pro Bono Training: Landlord/Tenant Issues
Issue spotting landlord/tenant issues that may come up following a disaster.
Hello. My name is Tristan Overcashier and I'm a volunteer attorney with Bay Area Legal Services. And the first topic we're going to speak about today is issue spotting with landlord and tenant issues that may come up following a disaster.
So the situations you'll likely encounter will be between a landlord and a tenant. And typically we will be representing or helping a tenant either trying to find some more aid for some damaged personal property or deal with a contract issue regarding the lease on a property that they're renting.
One of the first things you want to do is you want to try to get a copy of the lease between the landlord and the tenant. This is going to be a contract issue and there will be portions of the lease that can speak to some of the avenues you can go down in order to help the tenant in these situations. You'll also want to inquire with the renter and see if they have any renters insurance. And this can be a great tool for helping get repairs to their damaged personal property. And rental insurance is really a great thing and if they have it, you'll want them to file a claim as soon as they can with their insurance company and try to start recovering some of their damages.
Now, you will encounter situations where the tenant is going to be living in a home that's been damaged. For instance, in Hurricane Irma, there were a lot of tenants whose properties they were renting, they were no longer habitable. Either the roofs were damaged or parts of the walls had been broken down. And there's actually Florida law and statutes, specific statutes, that dictate what the landlord and what the tenant can do in these situations.
Florida Statute 83.63 is one of the relevant statutes and this actually gives the tenant the ability to cancel the lease in the event that the home has become uninhabitable because of a storm. At the discretion of the tenant, which means the tenant can cancel the lease, but they don't have to, and it also means that the landlord does not have the right to cancel the lease.
At this time, they can elect to cancel the lease, and they are also entitled to recover their security deposit. And Florida Statute 83.49 is going to be the relevant statute determining the timeframes for providing when the landlord must provide the security deposit back to the tenant.
You'll also want to check the lease and just see if there's any force majeure clause, and this may give us another avenue of recovery, or another way for the tenant to cancel the lease in the event they no longer want to stay at the property.
Disaster Relief Pro Bono Training: Homeowner Issues
Homeowner issues, typically involving insurance and mortgage.
Hello. My name is Tristan Overcashier. And the next topic we're going to speak about is homeowner issues that may arise following a disaster. And typically these issues are going to involve insurance or mortgage issues with the homeowner.
Another issue you may want to look for is building or code restrictions that are going to be put on builders and put on the homeowner when they're making repairs to their property. For instance, with roof repairs, if you're going to make a repair of more than 25% of the roof, you are required to build the roof according to the newest and more strict codes.
But really the most likely issue that you'll encounter with the homeowner will be with their insurance company. And so what you have to do first is identify where they are in the insurance process. And if they haven't filed an insurance claim yet following a disaster, that'll be the first step, you'll want them to call the hotline to their insurance company and get them to file an insurance claim. After that, you'll have an adjuster who will come out and they are going to inspect the property and based on what they find, they will either issue a denial, which will say there is no coverage here and they won't be making or issuing any payment, or they will write a damage report and an estimate, and this will be how much the insured or the homeowner is entitled to.
It's at this point, typically where the homeowner will have an issue, either they'll be underpaid by their insurance claim, or they won't get any money at all. And so if you've been issued a denial you can still appeal the denial. And so you really want to identify where are they in this insurance process. Now the documents that are very important that you'll want to get from the homeowner or your client, in this case, would be a copy of their insurance policy. A lot of times they're going to be carrying a mortgage and the mortgage is important because if they issue them any payment, the payment is going to become paid to the mortgage company as well. So you'll want to see, do they have a mortgage on the property and how is that impacting their payouts? If they've been denied a claim, you'll also want to get a copy of the denial letter. This is going to be important for any type of appeal that you file or any type of work that you want to go forward with in trying to get them some additional recovery.
You'll want to keep in mind that policies typically will carry some sort of duty to mitigate or duty to notify on the insured or on the homeowner. So you want to make sure that they follow through with these duties as is instructed by the contract between them and their insurance carrier.
And you'll also want to keep tabs on how the payouts are coming from the insurance company. As I mentioned before, if they come paid out to the insured and the mortgage company, the mortgage company is likely going to require some sort of draw inspection or some sort of way to ensure that the repairs are being made before they agree to sign off on the funds.
Disaster Relief Pro Bono Training: FEMA
FEMA aid that may be available after a disaster.
Hello. My name is Tristan Overcashier, and I'm a volunteer attorney here at Bay Area Legal Services. And the next issue we're going to be speaking about is FEMA and the type of aid that they can provide for a client that you may get after a disaster.
FEMA or the Federal Emergency Management Agency is an organization that was created under the Department of Homeland Security. And their job is to provide assistance to not only specific citizens who are affected by disasters, but to state and local governments.
And you'll want to keep in mind that FEMA is not intended to make a citizen whole after a disaster. They're simply there to provide aid and pick up where something is left off. For instance, if a insurance payment doesn't cover a certain thing or an insurance carrier doesn't provide for certain types of coverage, such as cost of living or relocation fees, that's where FEMA will come in and potentially provide some additional support and some additional aid for your client.
It's important to note that FEMA aid is not going to be triggered in every single type of disaster. You will need some sort of presidential declaration. You'll also need a very large event. Hurricane Irma was certainly an event that triggered FEMA aid and was one that was declared an emergency by the president. And this allowed people to tap into those FEMA funds.
Typically, you'll find a client and they'll either have applied for FEMA aid and have been denied, or they'll feel that they're entitled to perhaps more FEMA aid. And even if they've been denied, there are still the avenue to appeal the decision. And Bay Area Legal Services has actually put together a great manual for appealing of FEMA determination if they've denied any type of coverage.
To be eligible for FEMA aid, at least one person in the household has to be a U.S. citizen, you need that presidential declaration, and you're also going to need to have the damages caused by whatever the event that triggered this disaster declaration was.
Keep in mind that FEMA aid is not only for homeowners, but it is also for tenants. So if people have lost the home which they're renting or they've had property damage that...from their rental property, they still are entitled to apply for FEMA benefits.
Some of the types of benefits that FEMA does provide are housing, relocation, food, payments for funeral or medical expenses. So there's a really wide variety of aid that FEMA provides that you can apply for, and you can try to seek for your client.
Keep in mind that FEMA is only going to cover and provide aid beyond what is not covered by insurance. So you're going to have to identify, did my client have insurance, any property insurance, any rental insurance, how much was paid out for these claims? Was there a denial issued? If there was a denial issue, this is a great tool to have, or a great document to have to support requesting additional FEMA aid.
Typically, the maximum amount that FEMA will pay out per individual in a storm or disaster is $34,000, which is typically nowhere near enough to make someone whole. So you are going to have to pursue other avenues of aid for your client if they're completely relying on FEMA.
Please also note that if you're dealing with flood insurance, there is no allowance for cost of living or relocation fees. So definitely, pursue the FEMA route and try to get your clients some aid if this is a flood event and they're not being paid for any of those costs.
Disaster Relief Pro Bono Training: Contractor Issues
Issues that may arise with contractors and dry out companies.
Hello. My name is Tristan Overcashier, and I'm a volunteer attorney with Bay Area Legal Services. The next issue we're going to speak about is issues that may arise with contractors or dry out companies between a client that you may be representing.
After big storms and disasters, you'll typically get a large influx of contractors and dry out companies who will come to the area and try to advertise and complete work for people whose homes have been damaged. Unfortunately, this leads to a lot of fraud, this leads to a lot of issues between the contractor and the homeowner. And a lot of times our clients will be people who have been taken advantage of by these contractors. So, what you'll want to do is identify where are they in the process, have they made a payment to a contractor, is there a lien on the property yet, and identify what you can do to help resolve the issue between them and the contractor.
So, we want to talk a little about liens. And what a contractor can do is they can issue a mechanic's lien or a contractor's lien on the property if they haven't been paid in full for the work that they have completed. A lot of times what they will do is they will overcharge during storm events, and then when they're not paid, they'll place a lien on the property and this can be very damaging to a homeowner.
Please remember that unlicensed contractors can never file liens, and a lien cannot be filed unless a notice of commencement was filed and recorded.
Some documents that you'll want to ask the insured for will be the estimate from the contractor and you'll also want to get any other type of assignment of benefits, which we'll touch on later or any type of other paperwork between them and their contractor.
Keep in mind also that the homeowner will have certain contractual rights between them and the contractor. So, if they haven't completed the repairs or if they did not complete them in a satisfactory manner, they will have certain remedies such as specific performance or damages that they may pursue.
So, if you come across a client and they are having an issue with the contractor, you're really reduced to three options. You can either pay the full amount, and this will be a release of the lien or you can challenge or go to court, but that can get very costly and that won't involve an argument about what should have been paid, what hasn't been paid. The third option is to just simply reach out to the contractor and try to negotiate a settlement with them in order to get the lien removed from the property.
Another set of issues that may arise are between homeowners and dry out companies. And dry out companies are some of the first to arrive after large-scale disasters and they provide services such as water remediation and tear out of damaged homes from water.
Thankfully, FEMA has provided set guidelines on how much these dry out companies can charge and what type of dry out services they can offer. They're going to require dry logs and they're also going to set the amount of dehumidifiers, air movers, and other objects that they can use and how much they can charge for these items.
Disaster Relief Pro Bono Training: Assignment of Benefits
Issues that arise when third-parties step in for homeowners.
Hello. My name is Tristan Overcashier, and I'm a volunteer attorney with Bay Area Legal Services. And the next issue we're going to talk about is assignment of benefits following a disaster.
Assignment of benefits is a term that we use when a third-party essentially steps in for the insured or the homeowner, and now takes over the interactions they have between them and the insurance company. And why this can become problematic is because essentially, you're giving away your rights in dealing with the insurance company yourself as a homeowner. This has led to a great deal of fraud and a great deal of issue in the state of Florida recently, with many dry out companies or contractors taking an advantage of the assignment of benefits, overcharging the insurance company, and then causing a great deal of litigation.
If you have a client who has entered into a contract for an assignment of benefits between someone doing repairs on their home and their own insurance company, they will have to be resigned to the fact that they no longer have control over the interactions between the repair company and their insurance company.
So one of the first things you'll want to do if you have a client who's having an issue with an assignment of benefits between them and their contractor or them and their insurance company, is you'll want to acquire a copy of the insurance policy. And you also want to get a copy of the written assignment of benefits.
Recently, Florida has passed a statute, 627.7152, which speaks directly to the assignment of benefits. And thankfully, they have set out some more strict guidelines and requirements on how the contracts must be directed towards the repair companies and the insurer.
Keep in mind also that this only applies to contracts and assignment of benefits contracts entered into after July 1, 2019. So if you are dealing with a claim from say, Hurricane Irma, these new rules would not apply to these types of assignment of benefits claims.
And the language of the statute has really set out more strict guidelines for how the assignment of benefits contracts can be entered and how they can be enforced. And so you want to take a look at that statute and make sure that they are adhering to the Florida statute and also ensure that the repair people have given proper notice to your client regarding the assignment of benefits.
Highly recommended disaster training resources:
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