Florida Real Estate Lawyers Blog

Are You Entitled to Receive a Real Estate Commission?

Published on: March 9, 2014 | by ESQ.title

Daniel Pascale

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

As the amount of South Florida real estate transactions continue to reach new records, real estate brokers and agents find themselves in more and more commission disagreements. As such, we thought it would be a good idea to post a new article on the doctrine of procuring cause.

The Doctrine of Procuring Cause

Procuring cause refers to a broker’s efforts to match a ready willing and able purchaser with a seller and for a sale to take place as a result of the broker’s continuous negotiation and/or involvement. Stated differently, to be the procuring cause of a sale or lease of real estate, a broker or agent must have brought the parties together and effected the sale or lease assignment as a result of continuous negotiations inaugurated by the broker. Whether a real estate broker or agent is the procuring cause of a sale must be factually determined on a case-by-case basis. Many factors can impact a determination of procuring cause, but no one factor is by itself determinative.

Top CRE Investment Opportunities for Foreign Nationals – Single Tenant Triple Net Investments (NNN)

Published on: March 1, 2014 | by ESQ.title

By: Alejandro E. Jordan, Esq.

The greater Miami area has emerged as one of the leading commercial real estate investment locations in the U.S. due to its climate, diversity, proximity to South America, and infrastructure. Foreign investment from Mexico, China, Venezuela, Canada, India and Brazil drives many of the commercial real estate acquisitions throughout South Florida. While each investor has a different risk tolerance and end goal in mind, they are all looking to protect their investment by purchasing the safest property with the highest returns possible.

Single Tenant Triple Net Investments (NNN) – Low Risk and High Yield Commercial Real Estate Investment

Fortunately, there is a real estate investment option that can offer low risk and high yields. It’s called a Single Tenant Credit Net Lease Investment (NNN), Freestanding NNN Investment, or Triple Net Leased Investment.

South Florida Real Estate Due Diligence Checklist

Published on: February 23, 2014 | by ESQ.title

By: Alejandro E. Jordan, Esq.

Whether you are a seasoned real estate veteran or a first time investor, having a due diligence checklist in “black and white” is a valuable and necessary tool for any real estate purchase. For commercial real estate, value is determined by analyzing the income stream the property generates or is expected to generate. Of all the commercial properties types, perhaps none of them are more complex than the analysis of a mixed-use multi-tenant property with residential, office, and retail uses. While every commercial real estate investment presents a unique set of challenges and opportunities, each transaction beings with essentially the same due diligence.

Below is a commercial real estate due diligence checklist that provides you with a general list of some of the most necessary documents to review and analyze with your South Florida due diligence real estate lawyer.

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.

Florida Real Estate Case Law Updates

Published on: February 10, 2014 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Estate by entirety. A deed was to an undivided 98 percent interest and H and W, husband and wife, as to an undivided two percent interest, creates an estate by the entirety in the two percent interest even though that phrase was not used in the deed. Roberts-Dude v. JP Morgan Chase Bank, N.A., 498 B.R. 348 (S.D. Fla. 2013).

Prior judgment trumps homestead rights. A valid judgment lien which attached prior to acquisition of homestead rights is superior and enforceable. LaCalle v. Hauptman, 118 So.3d 239 (Fla. 3d DCA 2013).

Retaining trade fixtures. Where a lease is ambiguous as to which party is entitled to retain trade fixtures when the lease expires, the tenant is entitled to retain the trade fixtures. H. Allen Holmes, Inc. v. Jim Molter, Inc., 38 Fla. L. Weekly D2399 (Fla. 4th DCA 2013).

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.

Real Estate Case Law Updates

Published on: January 17, 2014 | by ESQ.title

By: Daniel Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

COURT APPOINTED RECEIVER OVER CONDO ASSOCIATION

Granada Lakes Villas Condo Ass’n, Inc. v. Metro-Dade Investments Co.,

74 So.3d 593 (Fla. 2d DCA 2011), app’d 38 Fla. L. Weekly S777 (Fla. 2013)

The developer of a subdivision of a larger condominium complex and the master property owners association for the development (owners association) sued the condominium association (condo association), alleging that the condo association failed to pay the developer and the owners association related expenses for common areas after collecting fees and assessments collected from owners of the condominium units. The developer subsequently filed an emergency motion for the appointment of a receiver over the condo association in order to facilitate the collection of the fees and assessments and to perform a proper accounting. The trial court concluded that it lacked the statutory authority to appoint a receiver in this instance.

On appeal the Second District Court reversed the trial court’s judgment, holding that the trial court erred as a matter of law because its right to appoint a receiver in this case was inherent in a court of equity, not a statutorily created right. The Supreme Court approved the appellate court’s decision, holding that a court’s inherent equitable power to appoint a receiver over a non-profit condominium association like the condo association was not limited to certain statutorily enumerated circumstances.

SERVICEMEMBERS CIVIL RELIEF ACT

Higgins v. Timber Springs Homeowners, 38 Fla. L. Weekly D2274 (Fla. 5th DCA 2013)

A homeowners association sued to foreclose on a lien in the amount of $363.33 for unpaid homeowner’s fees. The homeowner wrote three letters to the judge informing him that the homeowner was serving in the United States Army. One of the letters enclosed orders requiring the homeowner to be in Pennsylvania two weeks before the hearing on the association’s motion for summary judgment. Nevertheless, the trial court granted the motion for summary judgment, entered final judgment of foreclosure, and denied the homeowner’s motion to vacate the final judgment of foreclosure.

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.

2013 Legislative Changes to Florida’s Condominium Law

Published on: December 2, 2013 | by ESQ.title

By: Daniel Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Florida’s condominium laws change frequently and affect hundreds of thousands of unit owners in the process. During Florida’s last legislative session, the legislature enacted a number of changes to Chapter 718, Florida Statutes (Florida’s Condominium Law). The highlights of the 2013 amendments to Florida’s Condominium Law are summarized below:

Elevator Retrofitting: Associations do not have to involuntarily retrofit elevators pursuant to local ordinances unless their building’s elevator is replaced or requires a major modification.

Association Acquisition of Lands of Recreational Leases: Associations can now upon a vote of, or written consent by, a majority of the total voting interests or as authorized by the declaration as provided in s. 718.113, acquire lands of recreational leases.

“Insurable Event”: as defined in s. 718.111(11), has been clarified to include damage occurring to a portion of the condominium property for which the unit owner has responsibility.