Real Estate Deals & Transactions

Is Your Real Estate Transaction Subject to FIRPTA Tax Withholding?

Published on: February 19, 2014 | by ESQ.title

By Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

What is FIRPTA?

The Foreign Investment in U.S. Real Property Tax Act of 1980 (“FIRPTA”) was enacted to ensure that foreign investors are taxed on the gains from the disposition of their U.S. real property investments. Pursuant to FIRPTA, a buyer (whether domestic or foreign) purchasing U.S. real property interests from a foreign person must withhold 10 percent of the amount realized from the sale (i.e., the entire purchase price, not just the gain). FIRPTA applies to both residential and commercial real estate transactions.

In a FIRPTA transaction, the buyer (i.e. the transferee) is considered the withholding agent and has the responsibility to determine whether the seller (i.e. the transferor) is a foreign person; otherwise, if the seller is a foreign person and the appropriate amount is not withheld, the buyer will be held liable for the tax, and any and all penalties.

The IRS defines a foreign person as a nonresident alien individual, a foreign corporation that has not made an election under section 897(i) of the Internal Revenue Code to be treated as a domestic corporation, a foreign partnership, a foreign trust, or a foreign estate.

How Much Are Closing Costs In Florida?

Published on: February 2, 2014 | by ESQ.title

By: Alejandro E. Jordan, Esq.

We have gathered the most frequently asked questions (FAQs) from buyers and sellers of real estate in Miami-Dade, Broward and Palm Beach Counties as they relate to residential real estate closing costs. Below is a list of our answers to the most common questions:

Q: What are the typical closing costs for Buyers?

A: Buyer’s closing costs are negotiated and set forth in the Purchase and Sale Agreement (the “Contract”) entered into by the parties. The typical closing costs to be paid by the buyers are as follows:

Cash Deals:

Recording fees for deed;
Buyer’s inspections;
Buyer’s attorneys’ fees.

What are the Benefits of a Florida Land Trust?

Published on: January 30, 2014 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Florida Statute 689.071 creates an entity known as a Florida Land Trust. A Florida Land Trust is a device by which real estate is conveyed to a trustee under an arrangement reserving for the beneficiaries the full management and control of the property. The trustee executes deeds, mortgages, or otherwise deals with the property at the written direction of the beneficiaries. The beneficiaries collect, rent, improve and operate the property without holding legal title. Two instruments create the land trust arrangement. The “deed in trust” conveys the realty to the trustee. Contemporaneously with the deed in trust, a trust agreement is executed.

As discussed in our prior post (here), although the Florida Land Trust is a relatively unknown legal entity, it can offer a wide variety of benefits. Land trusts created under Florida Statute 689.071 are useful tools for many purposes, such as:

Privacy

By operation of law, the beneficial interests in a land trust remain entirely private. Thus, as long as the Trustee is also not the beneficiary of the land trust, the beneficiary(ies) will remain anonymous absent order of a court. Moreover, land trust agreements are not recorded in the public records. Thus, the specific provisions of the trust are never disclosed to the public.

Florida Land Trusts – The Basics

Published on: December 15, 2013 | by ESQ.title

By: Alejandro E. Jordan, Esq.

Although Florida land trusts are a relatively unknown legal entity (even to many lawyers), they are a great vehicle to hold legal title to real estate in Florida for both foreigners and U.S. citizens. The law concerning land trusts varies from state to state and so it is important to understand the background of this vehicle for the ownership of real estate. In fact, Florida is one of only two states in the nation that has a specific statute governing land trusts. The specific statute governing land trusts in Florida can be found at Florida Statutes Chapter 689.

There are two essential instruments to a Florida land trust, the deed that conveys property into the land trust and the land trust agreement. Other terminology that is important to familiarize yourself with includes:

Terminology

Trust Agreement: The Trust Agreement is the agreement entered into between the trustee and the beneficiary which establishes the trust

Trustee: The Trustee is the party designated in the trust agreement to hold legal title and equitable title to the land trust property.

Beneficiary: The Beneficiary is the party designated in the trust agreement as having the power to direct the trustee with regard to the trust property, the control of the management, operation, rental and sale of the trust property and the right to the earnings, avails and proceeds of the trust property.

Power of Direction: The Power of Direction is the right to control the trustee’s disposition of tile to the trust power and the execution of trust documents affecting the trust property

Deed in Trust: The Deed in Trust is the instrument which conveys title to the real property into the land trust.

Trustee’s Deed: An instrument by which a land trustee conveys title to the trust real property to another party is a Trustee’s Deed.

Is a Verbal Option to Purchase Real Estate in Florida Enforceable?

Published on: September 12, 2013 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Consider a scenario where you have been leasing a residential property in Miami on a month-to-month basis for a little over a year but would like the eventual opportunity to purchase the property. Over the course of several lengthy conversations between you (the tenant) and the property owner (the landlord), the landlord ultimately agrees to give you the exclusive option to purchase the property once you resolve some old credit issues associated with a prior foreclosure. After your landlord gives you at least two verbal assurances in one week alone that you have an option to purchase the property and you shake hands on the agreement, you believe that the “deal is done.” However, after searching on Zillow one week later, you discover that your landlord has listed your property for sale with a broker. You immediately contact the listing broker and are told that the property is now under contract for sale to someone else and that you have one month to leave.

What are your legal rights in this situation? Can you sue your landlord to enforce the verbal option agreement that you accepted? Do you really only have one month left before you have to leave when you have lived at the property for over a year? Sadly, the answer to all of these questions is that you have no right to purchase the property or legal recourse against your landlord. To make matters worse, it’s also true that you have no legal right to stay in the property for anything longer than the thirty days that the landlord provided. Here is why, and here is how to prevent this tragic situation from playing out in the first place:

Is a New Owner Responsible for Condo or HOA Liens After Buying a Foreclosure in Miami or Broward County?

Published on: September 1, 2013 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Given that there are literally tens of thousands of homeowners and condominium associations in South Florida, it is no wonder that purchasers of foreclosure properties in Miami-Dade and Broward County frequently have questions about whether they are liable for past due homeowners or condominium assessments after purchasing property at a foreclosure sale. Once the initial excitement of the new purchase wears off, foreclosure purchasers frequently find themselves the target of associations seeking to collect past due assessments owed by the previous homeowner.

When confronted with this scenario, new property owners often recoil at the notion that they are responsible for the past due assessments: “What do you mean I owe the association $10,000 in back assessments, I just bought the property at a foreclosure sale free and clear last week? Those fees are the responsibility of the prior owner, not me!” Although this reaction is understandable, it is only partially correct.

Thinking of Investing in South Florida Real Estate? Better Start Recruiting Your Real Estate “Dream Team.”

Published on: August 25, 2013 | by ESQ.title

By: Alejandro E. Jordan, Esq.

Thinking of investing in real estate in South Florida? Recently published data by the Miami Association of Realtors and Greater Fort Lauderdale Association of Realtors confirms that real estate prices in Miami and Broward County are beginning to take off. However, while purchasing investment property can be highly rewarding, it may also result in extreme losses. The most successful investors understand this principle and surround themselves with the right professionals from the beginning to mitigate the inherent risk.

It is no secret that successful real estate investors don’t do it all on their own. That task would be impossible considering that the best real estate portfolios typically contain a mixture of residential, commercial, single family, mixed use, retail, industrial and multi-family investment properties. Even if you haven’t made your first investment property purchase yet, having the right team on your side is invaluable, especially in competitive markets like Pine Crest, Coconut Grove, Brickell, Miami, Coral Gables, Miami Beach, and Bal Harbour.

Deal-Maker vs. Deal-Breaker: What is a Real Estate Lawyer’s Role in Real Estate Deals?

Published on: August 19, 2013 | by ESQ.title

By: Alejandro E. Jordan, Esq.

Attorneys working on complex real estate deals frequently forget that they are being employed to advance their client’s business objectives, not destroy them with a litany of complications, caveats, and “what-ifs”. After all, at the end of the day, clients employ their attorneys to be deal-makers, not deal breakers.

The difference between the two types of attorneys frequently boils down to their training, experience, and business acumen on the challenging deals that pay the premium dividends. Of course, real estate lawyers must advise their clients on the downsides of a particular deal, but the decision must remain with the client at all times. Even though it is the client’s investment that’s at play (and not the lawyer’s), many lawyers like to “play client” rather than offering guidance and then letting the “real” client decide whether the deal should go forward.