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91. THE JUDGE RULES: More on Laws Pertaining to Trees

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Apparently the tree column did not answer all of your questions about trees. While a judge cannot give legal advice, I will highlight some areas of the law and let you come to your own conclusions.

Many questions were asked about trees on leased land. The lease should set out the tenant’s and the landlord’s responsibility for trees. If a tenant is leasing an apartment, the landlord is usually totally responsible for all trees on the property. If a tenant is leasing a house or a lot in a mobile home park, the tenant is generally responsible for maintaining the trees on the property. The tenant must keep them in good condition. The tenant should remove excess moss. The tenant should remove damaged branches. The tenant cannot cut down the trees or damage them in anyway. The landlord owns the trees.

If you are renting, and a tree falls on the apartment or house you are renting, it is the landlord’s responsibility to remove the tree and make repairs. Cases say this is an act of God that might break the lease. The landlord might not be in a position to make necessary repairs or the repairs might require a vacant unit. You may be required to move. If the unit is livable but worth less than it was before the damage, should the rent be reduced? That would have to be decided on a case by case basis. During the hurricanes many trees fell into the screened pool areas of rental homes. It took months to repair all the damage. Some tenants vacated. They did not want to live in the rental home under those circumstances. Some tenants stayed and had no use of the pool area for months. The docket was crowded with tenants who refused to pay rent or refused to pay full rent.

If you are renting a lot in a mobile home park and a tree owned by the park falls on your home, who is liable? Did the lease specify who was to maintain the tree? If you were to maintain the tree, did you maintain the tree properly? If it was diseased or storm damaged did you advise the park? Cases say that if the owner of the tree is put on notice of a risk caused by the tree and the owner of the tree does nothing to prevent harm from occurring, the owner may be liable. If you had the responsibility of maintaining the tree and warning of harm and you did not, the owner might have less or no liability.

If you are renting with an option to buy, the trees still belong to the landlord/seller. If you have a rent to own contract, the trees still belong to the seller until your name is on the deed. You cannot cut down the trees without permission. Get the permission in writing!!!

*****(This example is based on an actual closed case.)*****

Conner mistakenly cut down some of Clark’s trees which were located on vast acreage. Clark wanted replacement value for each tree—$85,144.21.

The judge writing for the 2nd District Court of Appeal ruled: While in some cases the court should consider the loss of each individual tree, not in this case. This is not like the loss of trees used for ornament and shade in a trailer park. Clark had the burden to prove the value of the land before and after the removal of the trees. Because Clark did not prove the damages, the court rules in favor of Conner. (441 So2 674)



92. THE JUDGE RULES: Servicemembers Civil Relief Act (SCRA)

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

War calls for sacrifices. All service personal and their families know it. It may call for some sacrifices on your part and you may not know it yet.

If you are a landlord or a creditor, you should become familiar with the Servicemembers Civil Relief Act (SCRA). It was formerly known as the Soldiers’ and Sailors’ Civil Relief Act (SSCRA).

Let’s say a person borrows money from a lending institution at 18% interest. He is then called into active military duty. Upon request of the service person, the interest is to be capped at 6% while he is on active duty. (50 U.S.C. App. ss 526, section 206)

A common scenario is a young couple with small children and Dad, the primary breadwinner, is called up to active duty. The family income is greatly reduced. The family has been renting an apartment or small house. Mom can’t pay the rent. 50 U.S.C. App ss 530 states: No eviction shall be made during the period of military service for rentals less than $1200 per month, occupied chiefly for dwelling purposes by the wife, children, or other dependents of a person in military service, except upon leave of court.

The court may stay the proceedings for three months.

Ordinarily, failure to pay installments on property purchased would result in repossession. Section 531 is designed to protect service persons from this result. Do not attempt to repo that car or boat or 4-wheeler without court intervention if the purchaser is on active military duty. To do so may result in fines or imprisonment for you.

A section of the Act deals with mortgages. Certain procedures must be followed before a court would grant a foreclosure against a person on active military duty.

Subsection 535(2) limits any person from proceeding without a court order against a person on active duty and for three months afterward on a storage debt concerning household goods or furniture.

*****(This example is based on an actual closed case.)*****

A Florida military husband was stationed in Germany. His wife and children lived in Germany with him. The wife left the children with him and returned to Florida. She filed for divorce. She wanted custody, child support and attorney fees. The husband was not opposed to the divorce but wanted a delay until he was able to return to Florida to present his side of the case on the other issues.

The Judge writing for the 3rd District Court of Appeal ruled: The Soldiers’ and Sailors’ Civil Relief Act should be construed liberally in the soldiers’ favor. The divorce is granted but a decision on all other issues will be delayed until the soldier’s ability to defend is not materially affected by military service. (412 So2 947)



Extra. THE JUDGE RULES: Authority and Duty of National Guard Members

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

As I watched the television coverage of the people in New Orleans lining up to get into the shelter at the Super Dome, I was appalled by their lack of cooperation with the National Guard. People understand that they are suppose to obey law enforcement officers, but apparently some people are confused about the authority a member of the National Guard has. Florida Statutes 250, 251, 252 and 870 discuss the issue.

A member of the National Guard who is on active duty, has the authority to enforce emergency measures. Florida Statute 250.01 (21) states that an active member of the National Guard has the duty to preserve the public peace and enforce the laws of the state. He or she has the duty to suppress insurrection, repel invasion, enhance homeland security, and respond to terrorist threats or attacks. He or she has the duty to respond to an emergency.

It appears clear that a Guardsman is to be obeyed when he or she says stay in a particular line or go to another one.

A member of the National Guard may use force as a last resort in handling people who do not cooperate.

In addition to the other duties mentioned, the Florida National Guard provides assistance in counter-drug activities.

The Army National Guard is a part of the United States Army. Most members of the Guard are civilians who serve on a part-time basis. As directed by the Constitution of the United States of America, each state, territory and the District of Columbia has its own National Guard.

The Governor commands the National Guard when a unit is on a state mission. A governor of another state may act as commander of the Florida National Guard units sent to that governor’s state. The President commands the National Guard when a unit is on a Federal mission. The Guard is a part of the executive branch of our government.

Units can be called to action for many reasons including fires, earthquakes, civil disturbances and hurricanes. Homeland Security is a mission of the Guard.

*****(This example is based on an actual closed case.)*****

105 people enlisted in the Kentucky National Guard. They were later called up to active duty to serve outside Kentucky. They filed a lawsuit claiming that the assignment outside their state violated their enlistment contract.

The Judge writing for the United States Fifth Circuit Court of Appeals ruled: Whenever and wherever more units are needed for National Security, members of the National Guard shall be ordered to active duty and retained as long as needed. The enlistment contract was not violated by sending members of the Kentucky National Guard out of the state. 414 F.2d 1060



Extra. THE JUDGE RULES: State of Emergency

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

The President, the Governor or a local officer can declare a state of emergency. The local officer shall be either the mayor, the sheriff or the chief of police. Both Florida Statutes 252 and 870 discuss the details of emergency procedures. FS 252 used to be called “The Florida Civil Defense Act.” Now it is called the “State Emergency Management Act.”

“Safeguarding the life and property of its citizens is an innate responsibility of the governing body of each political subdivision of the state.” To help accomplish this, each county shall have an emergency management agency. The agency shall have a disaster-preparedness plan.

The Florida Legislature wants plenty of public shelters available in case of an emergency. Public facilities shall be made available for shelter use at the request of the local emergency management agency. People with special needs will be identified and given special assistance in case of an emergency.

Plans shall be established by the state for the orderly evacuation of residents, if necessary, including to other states, or for the orderly acceptance of evacuees, if that were to be necessary, including from other states.

A state of emergency can be declared if there is a clear and present danger of public disorder or disaster. If such a state of emergency is declared it should be identified by degree. A “catastrophic disaster” would require massive state and federal assistance. Immediate military involvement would be necessary. A “major disaster” would likely call for some state and federal assistance. A “minor disaster” could probably be handled by local government. Any state or federal assistance would be limited.

If a state of emergency is declared, the movement of residents may be restricted. The sale of alcohol or firearms may be prohibited.

*****(This example is based on an actual closed case.)*****

August 24, 1992. Hurricane Andrew struck Dade County with horrendous force. The destruction was devastating. The Governor declared a “state of emergency.” The County Manager of Dade County established a curfew. The curfew was enforced by law enforcement and the National Guard. A person who was unhappy with the curfew filed a lawsuit. He declared that the curfew was an unconstitutional infringement on his freedom.

The Judge writing for the United States Eleventh Circuit Court of Appeals ruled: If a curfew is set in good faith during an emergency situation, if there is a legitimate basis for the decision and the curfew is necessary to maintain order, it is not unconstitutional. In this case, the Governor had already declared a state of emergency. The curfew was temporary and was for the public good. This curfew was valid and enforceable. 91 F.3d 105



Extra. THE JUDGE RULES: Martial Law

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

The headline read “Martial Law In New Orleans.” The next day we were told that martial law was not in effect. We were told that the state of Louisiana does not recognize martial law. The reporter explained that the statutes in Louisiana gave officials broad powers to restore order by other means such as establishing a curfew.

After three people asked me questions about martial law which I could not answer, I did some research. Martial law is emergency government by military authority. When local law enforcement is overwhelmed by tragedy and unable to enforce its laws, military authority might be called in to protect the public safety by becoming the law. During martial law the domestic army has complete control over all activities.

Civil rights such as freedom of speech and the right to bear arms may be temporarily suspended. The military government can commandeer property to aid in restoring order during and after an emergency. The military commander has the powers of a dictator.

Our federal laws provide for martial law through executive orders. For instance, Executive Order 10995 gives the federal government the right to seize the media. Order 10997 gives the federal government the right to seize utilities. Order 10998 gives the right to seize food sources.

Each state has its own National Guard which the state’s governor can deploy in times of crisis. Only the President can deploy the regular standing armed services to quell civil unrest. The President can declare martial law. In addition, the local commander of the standing army sent in to quell a domestic disturbance can declare temporary martial law as an emergency measure.

If the Governor orders out the National Guard, their assignment is to enforce state laws. If the President declares martial law and calls out the standing army, the military presence is to override state law. The Constitution is temporarily put on “hold.” The military rule supersedes civil authority and civil rights.

Martial law has been declared only twice in the United States, both times by President Lincoln. Martial law was declared in the territory of Hawaii after the bombing of Pearl Harbor.

*****(This example is based on an actual closed case.)*****

While Hawaii was still under martial law, Duncan got into a brawl with two on-duty, military sentries. Civilian courts were in operation except for cases involving violations of military orders. Duncan was charged with violating a military order which prohibited hindering the military in the discharge of their duty. Duncan objected to a military trial. He wanted a jury trial.

The Justice writing for the United States Supreme Court ruled: A trial by a jury of one’s peers is not merely a cherished American institution, it is indispensable to our government. Mr. Duncan is entitled to a jury trial. (Duncan v. Kahanamoku)



93. THE JUDGE RULES: Adoption

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

According to a publication by the Children’s Home Society, there are more than 400 children in our area looking for a family to love them. These children can be placed in homes through the Department of Children and Family Services or a child-placing agency.

The state has a compelling interest in promptly providing stable and permanent homes for adoptive children. An unmarried biological father acquires a constitutional protection only if he can demonstrate a timely and full commitment to the responsibilities of parenthood during the pregnancy and after the child’s birth. The best interest of the child governs the court’s determination in an adoption proceeding.

Adoptive parents have a constitutional privacy interest in retaining custody of a legally adopted child. An unmarried mother who agrees to an adoption of her child is entitled to assurance regarding the adoptive placement. There is a compelling interest in preventing disruption of adoptive placements.

We have many adults in our area who were adopted as children. Some of them are trying to locate their birth parents. Florida Statutes Chapter 63 addresses most adoption issues including the confidential nature of an adoption.

All adoption hearings are to be held in closed court unless all the parties agree otherwise. All papers and records are confidential and subject to inspection only upon court order.

A person may not disclose from the records the name and identity of a birth parent, an adoptive parent or an adoptee unless each of the above agrees to have his or her name released. A court can order the release of the information for good cause. The court must consider many factors. Why is the information sought? Can the information be obtained in a less intrusive way? The adoptee seeking information under this section shall pay the Department of Children and Family Services or the child-placing agency a reasonable fee for any reports or services. “All nonidentifying information, including the family medical history and social history of the adoptee and the birth parents, when available, must be furnished to the adoptive parents before the adoption becomes final and to the adoptee, upon the adoptee’s request, after he or she reaches majority.”

The Department shall maintain a registry with the last known name and address of an adoptee, his or her parents and adoptive parents. The information is confidential.

*****(This example is based on an actual closed case.)*****

The parents divorced when the child was two. The mother, who had custody, remarried. The child’s father had no contact with the child and agreed to let the stepfather adopt the child. Before the adoption was finalized, the mother died. The natural father wanted to withdraw his consent for the adoption.

The Judge writing for the 4th District Court of Appeal ruled: The natural father cannot withdraw his consent at this late date unless he could prove fraud or duress. (848 So2 1259)


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