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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.

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).

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.

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).