Florida Real Estate Lawyers Blog

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.

Condo & HOA Disputes

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

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Condominiums offer a long list of benefits to those who opt to reside in them. Condominium unit owners have the advantage of owning property without the hassle of property maintenance, repairs, and security concerns. Condos are very popular in the city for practical purposes and many times can be cheaper than a single-family home. It is no wonder why there is a high-rise residential structure being constructed or about to open soon in almost any prime location in the Palm Beach, Miami, and Broward areas.

Construction Disputes & The Doctrine of Substantial Performance

Published on: October 7, 2013 | by ESQ.title

By: Dan Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

As the South Florida real estate market continues to heat up, construction disputes are once again becoming a common occurrence in Miami-Dade, Broward and Palm Beach County.

The Doctrine of Substantial Performance

While a party’s legal rights in a construction dispute are governed by the operative contract documents, they are also governed by the doctrine of substantial performance or substantial completion. Florida courts have defined substantial performance as that performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the contractor the full contract price subject to the client’s right to recover whatever damages they may have suffered because of the contractor’s failure to render full performance, i.e. complete the construction job.

According to Florida law, under the doctrine of substantial performance, the contractor has the right to recover the contract price from the client; however, the client also has the right to recover any damages caused by the contractor’s failure to render full performance. Sometimes, the offset damages that the client is entitled to because construction was not completed end up exceeding the contract price that the contractor is entitled to.

Standard Florida Real Estate Contract (Part 2 of 2)

Published on: September 26, 2013 | by ESQ.title

By: Dan Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Here is Part 2 of the new FAR-BAR Contract blog post:

Buyer Closing Costs

Paragraph 9(b) offers a list of closing costs to be paid by the buyer. The owner’s title policy premium has been added as a bullet point because buyers have been paying this cost when 9(c)(iii) has been checked.

Under the contract options of paragraphs 9(c)(i) and (ii), the owner’s policy and charges will now also include a municipal lien search.

If paragraph 9(c)(iii) (the Miami-Dade or Broward County provision is selected) a municipal lien search has already been included.

Flood Zone and Elevation Certification

Paragraph 10(d) now includes a blank space where the parties can insert the amount of time a buyer has in which to terminate the contract for flood zone related reasons. If the blank line is not filled in, the time frame defaults to 20 days from the contract’s effective date

In addition, a disclosure has been added to Paragraph 10(d). In some cases, a buyer will have to pay actuarial rates for flood coverage that could be notably higher than the seller was paying. The disclosure explains this possibility and the type of buyers that could be affected by the change.

Finally, the disclosure now informs the buyer that a new elevation certificate may be necessary.

Standard Florida Real Estate Contract (Part 1 of 2)

Published on: September 14, 2013 | by ESQ.title

By: Dan Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

The Florida BAR and Florida Association of Realtors recently adopted a new standard real estate contract. Because the new “FAR-BAR” contract will control the majority of residential real estate transactions in Florida, it is important to understand what amendments were made. The following is not an exhaustive list of differences between the old and new FAR-BAR contract, but summarizes some of the major changes:

Personal Property

The Check Boxes in Paragraph 1(d) were removed. To simplify the contract three items were added to the list of items transferred by the seller at the time of sale: (1) refrigerators, (2) smoke detectors; and (3) storm shutters. If the buyer and seller want to include additional items of personal property to be transferred to the buyer those items can be inserted at the bottom of Paragraph 1(d).

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.