Dockmaster Help in Florida

[BandB]

are you sure you want to make this guy a permanent member ?

Good question, but has anyone heard the boat owners side of the story. We're collectively judging him but we weren't there when this happened and neither was Seavee when he first docked.

 

[tiltrider1]

While this pertains to California its fairly relevent

The ins and outs of marina evictions

David Weil. Esq.

August 26, 2016



Q: I live aboard my boat in a private marina in Northern California, and the owner has asked me to manage the day to day operations of the marina. My job duties include the collection of monthly slip rent, but after starting the job I learned that most of the tenants are months behind in their rental payments. All of the tenants have signed a written slip rental agreement but I don’t really see anything in the document that talks about the eviction procedure. Can I just tow the delinquent boats out of the marina, or does unpaid slip rent give rise to a maritime lien that would require me to go to Federal Court for an eviction? Any help would be greatly appreciated.
A: Marina slip rental agreements are subject to federal admiralty jurisdiction and are generally characterized as a form of commercial tenancy, even if the boat owner lives aboard the boat. Notwithstanding the federal jurisdiction, state law remedies are available under many circumstances. The tenancy falls somewhere between a storage facility and a space rental at a mobile home park, but unlike those two arrangements California law does not specifically address a marina tenancy.
As a commercial tenancy, the consumer protections that are available to residential tenants are generally not available to marina tenants. A Federal District Court addressed this in 1979 when it held that “The right to dock one’s boat at a particular berth or marina cannot be equated with the right to decent low-cost housing even if one chooses to live aboard the boat.” A month to month slip lease may therefore be terminated – without cause – on 30 days notice.
The characterization of a slip rental as a commercial lease may sound favorable to the marina owner, but the eviction of a delinquent boat owner can be very complicated.
A marina operator will of course pursue the collection of delinquent slip rental payments, but the larger concern is often the task of actually evicting or removing a boat from its slip. Unlike a conventional residential or office tenancy, it is not possible to simply throw a marina tenant out on the street. The boat cannot be set adrift, and ironically, the most logical place to store an evicted vessel is often in the slip that it was evicted from. The eviction process does not, by itself, have any effect on the title of the boat and as such the boat owner’s rights cannot be ignored. The problems and strategies confronted by any marina operator must be resolved with these limitations in mind.
California’s “Boaters Lien Law,” codified in sections 500 through 509 the Harbors and Navigation Code, provides guidance for the eviction of a boat from a marina, but it is applicable only to DMV registered vessels. The law provides for a private lien sale to be conducted with the assistance and guidance of the Department of Motor Vehicles, and after the boat is sold the new owner will take possession. It is a very effective solution for a marina with a delinquent tenant.
Unfortunately the Boaters Lien Law procedure is available only for DMV registered boats. And, since most boats that are over 35 feet in length are documented with the U.S. Coast Guard, the DMV procedure may not provide much help for a marina with larger boats in its slips.
A breach of a marina tenancy agreement for a documented vessel will give rise to a maritime lien under the Federal Maritime Lien Act (46 USC sec. 31342 et seq.). The FMLA provides an extremely powerful enforcement mechanism through an “in rem” action against the vessel in Federal Court. This procedure calls for the U.S. Marshals to take the boat into custody through a “civil arrest,” which takes place without any warning to the boat owner. The in rem proceeding culminates in a public auction conducted by the Marshals, where the boat is sold under the supervision of the District Court. The process is generally very efficient and orderly, but as we have discussed many times in this column, a vessel arrest is a very expensive procedure and as such it may not be a realistic option for a small marina.
A small marina may instead want to pursue an eviction through an unlawful detainer action in state court. A slip rental agreement is a maritime contract that is subject to federal admiralty jurisdiction, but state law unlawful detainer procedures are available for the eviction of both state and federally registered boats. Unfortunately, this procedure gives rise to the “where can we put the boat” question. A successful unlawful detainer proceeding will lead to a monetary judgment against the tenant for the delinquent slip rental, and a court order instructing the sheriff to evict the tenant. The problem here is that, in most cases, the local sheriff or port police agency may not have an impound facility, and they cannot simply set the boat adrift. Nonetheless, if local law enforcement for a marina can accommodate an evicted boat at an impound dock, this is probably the best bet for someone like our reader. Regardless, he should consult a local maritime attorney for more specific advice relating to each of the boats that he is concerned about.
David Weil is licensed to practice law in the state of California and as such, some of the information provided in this column may not be applicable in a jurisdiction outside of California. Please note also that no two legal situations are alike, and it is impossible to provide accurate legal advice without knowing all the facts of a particular situation. Therefore, the information provided in this column should not be regarded as individual legal advice, and readers should not act upon this information without seeking the opinion of an attorney in their home state.
David Weil is the managing attorney at Weil & Associates (weilmaritime.com) in Long Beach. He is an adjunct professor of Admiralty Law at Loyola University Law School, a member of the Maritime Law Association of the United States and is former legal counsel to the California Yacht Brokers Association. If you have a maritime law question for Weil, he can be contacted at 562-438-8149 or at dweil@weilmaritime.com.

 

[Seevee]

Good question, but has anyone heard the boat owners side of the story. We're collectively judging him but we weren't there when this happened and neither was Seavee when he first docked.

BandB,

I wasn't physically there when the guy first moved in, but I was the dock master. Being a small club the other officer did a lot of things on his own, without telling anyone. Not good, but not done to be a bad guy. I believe him when he says the boat owner owes money and the boat owner admits he owes money and has overstayed his time at the transient dock.

It's a case of the boat owner just not getting done what he says he will. The boat owner took it upon himself to occupy the transient dock, but could have just moved into his new dock. I don't know why he didn't.

We'll see want happens, but I don't want to get myself in this position again.

====
BruceK,

Totally agree

====
aboatman,

We're not to that stage, yet
=====
Benthic2,

He is a member, that's a requirement of using any slip.
====
tiltrider1

Thanks for the detailed post. I pretty much know landlord tenant laws in Florida, as well as trust law (I go to class every few years to keep up with it), but I don't know maritime law.

What I do know, that it's a commercial lease, not a residential lease, but I don't know a simple remedy to solve the issue.
We had this once before prior to my position there, and I knew everyone involved quite well, and the club ended up loosing money and a member. I'd like to avoid that.

 

[psneeld]

1. Lawyer to confirm you have similar rights to what the California law says.
2. Eviction notice for the money.
3. Notify owner and marine police the boat is being moved to permanent slip in xxx amount of time.
4. File legal eviction notice.
5. If small claims would cover most of past slip rent, and someone can go to court....and after all the above happens....go for it.

Lay this out to the lawyer for pitfalls.

I still think temporary inconveniences at the transient dock such as planned water snd power outages, thow in some dock maintenance...... making the permanent slip more attractive could work....assuming the guy cares.

If all that is distasteful and you dont want to lose the member or upset members....it seems that constant reminders to the point of being annoying is one of the only tricks I know. It even works on teenagers much of the time.

 

[OldDan1943]

Eviction notices are almost a joke. They have 30 days to respond so figure, they wont do anything until day 25, then the appeal and then an additional number of days to actually move it.

Currently, there is one large boat that owes almost $3K. Sounds like a lot but in reality, it is about 1 month's slip fees.

 

[OldDan1943]

ces at the transient dock such as planned water snd power outages, thow in some dock maintenance...... making the permanent slip more attractive could work....assuming the guy cares.

.... it seems that constant reminders to the point of being annoying is one of the only tricks I know. It even works on teenagers much of the time.[/QUOTE]

LOL mom tried that. After awhile it stopped working when she kill off our "gilt gene." Myself and all my siblings are numb to guilt. LOL

 

[denverd0n]

A good attorney doesn't get you in court, but prevents you having to go there.

Well put.

I would add that a verbal contract (for most things, real estate is an exception) is legal and binding in Florida, and there is no requirement for a third-party witness. The problem, of course, is that without a witness, or anything in writing, it is impossible to prove exactly what the agreement was. Hence, if it gets to court, it turns into "he said, she said," usually with each party having dramatically different interpretations of what was said.

So, having a legal contract is one thing. Having a contract that you can enforce is a whole different matter.

 

[psneeld]

ces at the transient dock such as planned water snd power outages, thow in some dock maintenance...... making the permanent slip more attractive could work....assuming the guy cares.

.... it seems that constant reminders to the point of being annoying is one of the only tricks I know. It even works on teenagers much of the time.

LOL mom tried that. After awhile it stopped working when she kill off our "gilt gene." Myself and all my siblings are numb to guilt. LOL[/QUOTE]

Causing guilt versus annoyance just shy of harassment are 2 different things....

 

[BandB]

There are specific laws in FL relating to marinas. The revolve around the lien, recording it, getting a judgment. They don't afford much help in terms of eviction. I referred to these in post #14.

As Seavee stated, eviction would be covered by Florida law on nonresidential tenancies (often referred to as commercial but really just two sections of tenant laws, residential and nonresidential). These are actually easier than residential. There is even a provision for unwritten lease tenancy. It is determined to be at will. However, even there this situation is a bit problematic as the time period is determined by the frequency of rent payment. That determines how much notice must be given. We don't even have that clear in this case. Regardless, removal of tenant requires service, judgment, and process. Then what one is into is distrained property. Generally, there are procedures for sale of it, not all that much different than mentioned in the promissory lien section referred to in post #14. That requires several steps including advertising the sale.

The solution to all this is going to be to reach an understanding with the boat owner and move on. It may or may not include getting all or part of the money. The important thing is just agreeing and being done with it. Anything else is problematic, time consuming, and costly.

Nothing is easy involving removal of tenants. It's not even simple to deal with squatters.

I ran into a situation I had never encountered before recently. The eviction of an 87 year old from assisted living. The family was in the process of trying to get her into a nursing home under medicaid, but couldn't meet the date given by the assisted living facility. They asked, "what happens if she doesn't move by that date?" Interesting, what does the facility do? They can't put an 87 year old Alzheimer's patient out on the street. Ultimately, they can find a nursing home to accept her but that takes time. What we found out they typically do is at some point when one doesn't move, they find a reason that the person must go to the hospital and send them to ER, hoping to get them admitted. If admitted then they wait for the hospital to be ready to release them and claim they can't take them back because can't provide the care they need. Now, the hospital has the person with nothing they can do as they can't put them out without somewhere else to send them. I only learned this through a family member taking a master's class in social services and she and her class getting involved and helping the family.

None of these things are simple. I'm sure Seavee has the residential side down pat now but still a pain, just has all the contracts and procedures firmly in place. Dealing with a marina and no written agreement though is an entirely different situation and legally complex, so much so that the only good solution is reaching an agreement and moving on.

 

[OldDan1943]

If I recall correctly, the DM owns the slip? If that is so, you might point out the loss of income from other opportunities.

 

[Seevee]

If I recall correctly, the DM owns the slip? If that is so, you might point out the loss of income from other opportunities.

OldDan,

The DM doesn't own the slip, it's owned by the club. It's not a huge revenue producer, but a benefit for the members and does bring in some.

 

[Seevee]

There are specific laws in FL relating to marinas. The revolve around the lien, recording it, getting a judgment. They don't afford much help in terms of eviction. I referred to these in post #14.

That's something I know little about and need to brush up on it, but hope it never goes that far.... but who knows.

As Seavee stated, eviction would be covered by Florida law on nonresidential tenancies (often referred to as commercial but really just two sections of tenant laws, residential and nonresidential). These are actually easier than residential. There is even a provision for unwritten lease tenancy. It is determined to be at will. However, even there this situation is a bit problematic as the time period is determined by the frequency of rent payment. That determines how much notice must be given. We don't even have that clear in this case. Regardless, removal of tenant requires service, judgment, and process. Then what one is into is distrained property. Generally, there are procedures for sale of it, not all that much different than mentioned in the promissory lien section referred to in post #14. That requires several steps including advertising the sale.

The solution to all this is going to be to reach an understanding with the boat owner and move on. It may or may not include getting all or part of the money. The important thing is just agreeing and being done with it. Anything else is problematic, time consuming, and costly.

That's a good point, thx. The goal is to do just than, quick, simple and minimize loss and conflict. We'll see, I'm learning.

Nothing is easy involving removal of tenants. It's not even simple to deal with squatters.

I ran into a situation I had never encountered before recently. The eviction of an 87 year old from assisted living. The family was in the process of trying to get her into a nursing home under medicaid, but couldn't meet the date given by the assisted living facility. They asked, "what happens if she doesn't move by that date?" Interesting, what does the facility do? They can't put an 87 year old Alzheimer's patient out on the street. Ultimately, they can find a nursing home to accept her but that takes time. What we found out they typically do is at some point when one doesn't move, they find a reason that the person must go to the hospital and send them to ER, hoping to get them admitted. If admitted then they wait for the hospital to be ready to release them and claim they can't take them back because can't provide the care they need. Now, the hospital has the person with nothing they can do as they can't put them out without somewhere else to send them. I only learned this through a family member taking a master's class in social services and she and her class getting involved and helping the family.

None of these things are simple. I'm sure Seavee has the residential side down pat now but still a pain, just has all the contracts and procedures firmly in place. Dealing with a marina and no written agreement though is an entirely different situation and legally complex, so much so that the only good solution is reaching an agreement and moving on.

Band, sometimes evictions can be simple, and FL law does favor the landlord for the most part. One can get a non paying tenant our in 14 days, uncontested... maybe sooner. Deposits usually cover that unless there's excessive damage. With the 87 yo lady, that's a hard one. I've been lucky, only one formal eviction over 35 years and it was a pain. I inherited the jerk on a purchase and he contested, saying he had an equitable interest, because I bought the house from his dad. Took a few months. I've had several where I filed the papers, but the left, and I've "bought out" several. But, over the years I've had very few so can't complain. I suspect, with the marina, the lease could be in default in one day and could be terminated the next and if the boat is not in the slip, they could be "locked" out, without penalty (like other commercial stuff). But this boat hasn't moved in several weeks and tying up the transient dock.

 

[BandB]

Band, sometimes evictions can be simple, and FL law does favor the landlord for the most part. One can get a non paying tenant our in 14 days, uncontested... maybe sooner. Deposits usually cover that unless there's excessive damage. With the 87 yo lady, that's a hard one. I've been lucky, only one formal eviction over 35 years and it was a pain. I inherited the jerk on a purchase and he contested, saying he had an equitable interest, because I bought the house from his dad. Took a few months. I've had several where I filed the papers, but the left, and I've "bought out" several. But, over the years I've had very few so can't complain. I suspect, with the marina, the lease could be in default in one day and could be terminated the next and if the boat is not in the slip, they could be "locked" out, without penalty (like other commercial stuff). But this boat hasn't moved in several weeks and tying up the transient dock.

That's where it gets complicated though is that you might evict, but then what do you do with the boat. You haven't gotten anyone out or away. I couldn't find any provision for dealing with it other than perfecting the lien on it and then subsequently a judgment allowing a sale. That's the bind. You tell him to come move his boat. He doesn't. You have the lien. Well, assuming you have a contract. This one is a bit of a reminder of the guy on Biscayne Bay with four boats washed up in his yard.

Hopefully he comes around and it gets worked out.

 

[psneeld]

In this case, just get him into his own slip and off the transient dock....

isnt that half of this battle?

 

[OldDan1943]

OldDan,

The DM doesn't own the slip, it's owned by the club. It's not a huge revenue producer, but a benefit for the members and does bring in some.

Even better, he can approach the board and or members, explain the situation and the rest easy. Let the board and members plot the course of action.

 

[Benthic2]

If he's a member of the club, and he's not following club rules, it seems like this should be a matter for the membership committee, or whatever group deals with non conforming members.

 

[OldDan1943]

If he's a member of the club, and he's not following club rules, it seems like this should be a matter for the membership committee, or whatever group deals with non conforming members.

Yup, once the board has been informed, it is no longer the problem of the Dock Master.

 

[Budds Outlet]

Because presumably SeeVee and the club do not want hard feelings, perhaps the carrot approach might work. Approach the "tenant" with a proposal such as: The club will write off any moorage fee to date and reduce the moorage rate at the permanent slip to half price until the catwalk is installed IF a proper lease is signed and the boat is moved into the proper slip within 3 days (or some other appropriate time frame)

This will allow all parties to save face and free up the transient slip. There is no point in pushing for anything better because I doubt the club will back any harsher action and its going to cost a lot more than $800 to sue him out of the slip and recover the back rent without a signed contract. For all SeeVee knows, his friend may have told the tenant he could stay in the transient slip for free until the catwalk is installed.

 

[OldDan1943]

Budds, I disagree. Take it to the board of membership and let them make the decision. the DM may not have the authority to forgive anything.

 

[BruceK]

Mmm, who do you think will be giving effect to the Board decision? Seevee may well be a Board member. Making it someone else`s problem is not the answer. Someone has to "grasp the nettle", our OP is well into the problem,and it falls squarely in his area of responsibility. Though getting Board backing for his recommendation might be good.

 

[OldDan1943]

Mmm, who do you think will be giving effect to the Board decision? Seevee may well be a Board member. Making it someone else`s problem is not the answer. Someone has to "grasp the nettle", our OP is well into the problem,and it falls squarely in his area of responsibility. Though getting Board backing for his recommendation might be good.

The DM should bring before the board this situation with his recommendations.
When the board makes a decision, then and only then can the DM enforce the recommendations of the board.

 

[Scratchnsaw]

If the boat is a documented vessel, a Marshall can sticker the boat too with the proper paperwork. They cannot board the boat either. You can take a time and date stamp photo, reinforcing their obligation of the days of use.


Look up on placing a possessory lien in your area. While you may not be able to move the boat on your own at this point, you will be able to collect your money at some point, even with the hassle. Of course this is extreme measures. But it sounds like the owner is taking advantage of the lack of dockage and marine structure for tying up there.

 

[BandB]

Look up on placing a possessory lien in your area. While you may not be able to move the boat on your own at this point, you will be able to collect your money at some point, even with the hassle. Of course this is extreme measures. But it sounds like the owner is taking advantage of the lack of dockage and marine structure for tying up there.

Promissory lien was in effect the moment the boat docked by Florida law. Perfecting it and obtaining a judgement is the next step. Could be quite difficult with no contract or agreement.

As to the boat owner taking advantage, I'd say he's failing to communicate properly and apparently to do things when he promises, but we really don't know what the whole deal is. I would bet money the story from the person who let him dock there and his interpretation differ. Sounds like he came to rent a slip and that slip wasn't and still isn't ready. As to what the interim agreement was or when the slip was promised, we don't know.

See, normally I'd say we're only hearing one side and there are always two sides to the story. However, in this case we're not hearing from either person involved at the time, but from a third party who has now been brought into the middle to try to straighten it out.

The lien is there but the ability to perfect it, I doubt. It's going to have to be worked out in a gentlemanly fashion. Hopefully, both sides will be happy with the resolution. More likely, both will feel they were wronged but gave in to resolve it.

 

[Marlinmike]

Since he is a member I would just let him know his boat will be moved on x date and just leave it at that, if he doesn't move it before then just move it, he is a member of the club after all.

 

[Seevee]

Since he is a member I would just let him know his boat will be moved on x date and just leave it at that, if he doesn't move it before then just move it, he is a member of the club after all.

I'd have a hard time with that, but would do it as a last resort. I'm trying to solve this without a lot of conflict.

 

[BandB]

I'd have a hard time with that, but would do it as a last resort. I'm trying to solve this without a lot of conflict.

I'd present him with a contract and try to get him to sign.

 

[Budds Outlet]

but we really don't know what the whole deal is. I would bet money the story from the person who let him dock there and his interpretation differ. Sounds like he came to rent a slip and that slip wasn't and still isn't ready. As to what the interim agreement was or when the slip was promised, we don't know.

See, normally I'd say we're only hearing one side and there are always two sides to the story.

It may very well be that the tenant is pretty sure that if he occupies the unfinished slip the club will never install the catwalk. He may feel that holding off on occupying the slip is his leverage to get the catwalk installed.

 

[Marlinmike]

I didn't mean to sound this is to be aggressive, but more of you will help the guy out, after all we are club members and we will take care of it for you.

I'd have a hard time with that, but would do it as a last resort. I'm trying to solve this without a lot of conflict.

 

[OldDan1943]

I still maintain it is not the DM's problem. Take to the board, let them plot the course of action. Then, the DM enforces the board's wishes.

 

[psneeld]

would think slip assignment, control and fees would be EXACTLY the dockmasters job.....