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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)
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)
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
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
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) 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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