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Real Estate Agents – What you need to know about For Sale Signs!

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Overview:

Florida has seen an influx of new residents in recent years. In 2020 alone, 167% more people were moving into the state as compared to those moving out of the state. With hundreds of thousands of people flocking to the Sunshine State, cherry red “For Sale” signs are popping up all around neighborhoods to entice buyers. A homeowner planning to sell their home without the assistance of a real estate agent may place a “For Sale By Owner” sign in their yard on their own, but more commonly, “For Sale” signs are placed by a real estate agent. There is no requirement that states a homeowner or real estate agent has to place a “For Sale” sign in the yard of the property being sold, but it is somewhat customary to do so. “For Sale” signs encourage word of mouth around the community and alert potential buyers, can be eye-catching and attractive marketing tools, and make it easier for buyers coming to attend an open house or showing to locate the property being sold. Real estate “For Sale” signs may not only assist in selling the property you are representing as an agent; they may also assist you in attracting future leads and the community as a whole, bringing in not only buyers to achieve your client’s goal of selling their home or property, but also drawing in other prospective clients to boost your professional reputation and career. These signs can be a phenomenal marketing and selling tool, but it is important to understand the rules, regulations, and best practices of signage in order to make the most of your “For Sale” sign!

Digging Laws:

An often-overlooked step in the sign process is the physical digging necessary to place the sign in the ground. The Underground Facility Damage Prevention and Safety Act, Chapter 556, Florida Statutes, requires anyone who is digging or disturbing the ground to call 811 (Florida specific: 800-432-4770) or go to sunshine811.com and have underground facilities marked no less than two full business days before beginning any digging. The service is free and was created in order to prevent damage to both people and property. According to Call Before You Dig , utility locators from this service typically come to your home within two to five days after they’ve been contacted, not counting weekends. If you do not contact 811 and you accidentally damage a utility line while placing your “For Sale” sign, you could be hit with hefty fines and held liable for any damages by the state Utilities and Transportation Commission. Bottom line: If you are a real estate agent working to sell a home in the state of Florida, be sure to factor the utility location process into your plans to get the perfect timing for placing that “For Sale” sign.

Other Important Considerations:

Each state, county, and municipality has its own laws regarding the placement of signs. Under Florida Statute §479.16(3), signs posted or displayed on real property by the owner stating that the real property is for sale or for rent do not typically require permits. The Municipal Code for the City of Orlando (64.254) states that real estate signs are permitted in all zoning districts, provided that only one sign is erected for each street frontage of the property offered for sale, lease, or rent. Additionally, many homeowners associations (HOAs), condominium associations (COAs), and gated communities may have restrictions as to what can be placed or displayed in your yard or in front of your client’s property. It is your responsibility as a real estate agent to do your research and/or ask your clients about any possible rules or restriction which may affect the place of your sign, and to ensure that you are using the correct size, height, etc., as well as to make sure that you place the sign in an authorized location. Once the house is sold, you are also responsible for removing your sign.

It is recommended to keep the “For Sale” sign towards the middle of the yard, away from any trees, bushes or foliage, and closer to the sidewalk for the greatest possible visibility. You should also keep in mind as to if any cars are typically parked around the house that may block the sign’s visibility to potential buyers. It is additionally important to have your phone number, email address or website posted on the sign to encourage contacts from interested buyers. Some agents may also include a smaller sign at the top or bottom of the primary sign with other helpful information, such as a QR code for taking a virtual tour of the property, the property’s open house schedule, the listing price, possible benefits to the buyer, and features of the home, such as the number of bedrooms or special features like a pool or garden. Make sure the sign in legible and easy to read, and does not include too much distracting or unnecessary information unrelated to the sale of the property. In this digital day and age, it is recommended to post a picture with the house and the for sale sign to your social media accounts (with the client’s permission, of course) so that possible buyers can see it there and message you if they are interested.

Overall:

There is a great deal to consider when determining the placement of your “For Sale” sign. Remember to always check local laws as well as possible HOA and COA restrictions regarding sign placement, so that you do not lose your sign or face large fees. If you have questions about anything discussed here or regarding any of your real estate legal needs, feel free to give us a call at 407-512-4394. You will reach our Waterford Lakes office, which can connect you to any of our other numerous locations. Our experienced attorneys would be happy to answer any questions that you have regarding real estate and real estate transactions.

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Prenups and Postnups: Why you may want one

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A prenuptial agreement is a document that outlines what happens to a couple’s individual and jointly held property, assets, debts, and inheritance, should the parties ultimately decide a dissolution of marriage is necessary, or should one of the spouses predecease the other. Florida is an equitable distribution state, so in the event of a divorce assets are divvied according to what the court deems fair, provided there is no prenuptial agreement. The judge would take into consideration things such as the length of the marriage, whether there are children, as well as the couple’s age, health, job skills and other factors.

Why should you have a Prenuptial Agreement?

A prenuptial agreement is very useful if you want certain assets to remain within a familial blood line or if you desire a clear division between your assets/debts and those of your spouse. Although at first glance, proposing a prenuptial agreement to your spouse prior to marriage may appear business-like and transactional in nature, it is ultimately a means to ensure that your hard-earned assets remain yours. Furthermore, executing a prenuptial agreement prepared by an expert family law and estate planning attorney can help to significantly reduce the costs of litigation should a dissolution of marriage ever occur, as many of the issues that create a contentious atmosphere during a dissolution of marriage (excluding child support) will already have been delineated within the prenuptial agreement, to be upheld at the time of dissolution, or even death. Such agreements may even include who shall be held responsible for such litigation costs.

What can be agreed upon?

Florida Statute 61.079 is the primary statute governing the use of prenuptial agreements, and outlines the following issues that may be agreed upon within a prenuptial agreement:

1. The rights and obligations of each of the parties regarding any sole or jointly owned property, whenever, and wherever acquired or located;

2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

3. Who gets what property should a separation, marital dissolution, or death occur;

4. Whether alimony is to be established, modified, waived or eliminated;

5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

6. Ownership rights in and disposition of the death benefit from a life insurance policy;

7. The choice of law governing the construction of the agreement; and

8. Any other matter, including the parties’ personal rights and obligations, not in violation of either the public policy of Florida or a law imposing a criminal penalty.

IMPORTANT TO NOTE: The right to child support or attempting to waive or limit child support cannot be prearranged and will not be upheld if it is included in a prenuptial agreement.

Validity

A prenup is valid and effective at the time of marriage, but may be held invalid upon a finding that:

  1. It was not VOLUNTARILY executed by one of the parties;
  2. It was a product of fraud, duress, coercion, or overreaching;
  3. A party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
  4. A party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
  5. A party did not have, or reasonably could not have had, adequate knowledge regarding the property or financial obligations of the other party; and
  6. The marriage is determined to be null and void.

What is a postnuptial agreement?

A postnuptial agreement is a contractual agreement outlining the distribution of each parties’ assets upon death or dissolution of the marriage. Similar to a prenuptial agreement in subject matter; the true distinction between a postnuptial agreement and a prenuptial agreement is that a postnuptial agreement is entered into by the parties after the marriage has taken place.

Validity

A postnuptial agreement is valid and effective at the time of execution. The following list of reasons a postnuptial agreement can be invalidated is not comprehensive and all encompassing, but includes as follows:

  1. The parties were not married at the time the agreement was entered;
  2. The agreement is not in writing signed by the two parties;
  3. The agreement was not entered into by the parties voluntarily;
  4. One party did not have adequate knowledge of the property or financial obligations of the other party;
  5. The agreement does not contain a consideration;
  6. The agreement is not signed in the presence of two witnesses and a notary.

Why should you have a postnuptial agreement?

Many times, parties accumulate more assets during their marriage versus when they were single, and never even consider the idea that a prenuptial agreement may be beneficial. A postnuptial agreement will allow for the clear distribution of old and new assets accumulating before, during and after the marriage, as well as old and new debts, including joint debts, without the significant stress of dividing everything by way of court proceedings.

Wills and Estate Planning

Should one of the spouses predecease the other, the terms within a prenuptial or postnuptial agreement regarding rights of a surviving spouse to the following: an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate or any other such rights; which were properly waived in a prenuptial agreement or postnuptial agreement, may be upheld, so long as the agreement was in writing and was signed by the waiving party in the presence of two subscribing witnesses and a notary.

Creating a plan for your estate

If you have questions regarding prenups, postnups, wills, estate planning and more, please call us at 407.512.4394 to receive assistance with the aforementioned options or estate planning in general. Our experienced family law and estate planning attorneys would be happy to assist you in developing a plan to safeguard your hard-earned assets in the event and ensure that your will is followed should a dissolution of marriage become necessary, or should a spouse predecease the other.

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School Truancy Laws

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Overview:

Did you know, a parent who fails to have a minor student who is under their care attend school regularly can be charged with a second-degree misdemeanor, punishable by imprisonment for up to 60 days and a fine up to $500? With back-to-school season upon us, it is important to understand school truancy laws across the state of Florida, the impact they have on lower income families, and the impact on children with special education accommodations.

Breaking Down the Law:

There is no clear national definition of truancy, as states are able to determine the number of absences and periods of time that make a child truant. Under Section 1003.26 of the Florida State Statute, truancy is defined as a juvenile offense that can be charged to anyone under the age of 16 who fails to attend school on a regular basis. Parents of truant students can also be held responsible under Section 1003.27 of the Florida State Statute. Florida Truancy laws state that any child between the ages of 6 and 16 must attend school. Once a child turns 16, they can file a formal declaration of intent to terminate school enrollment and are then no longer subject to compulsory education after the process is complete. However, anyone who has not yet turned 16 and fails to regularly attend school may eventually be deemed legally truant. The state of Florida considers a “habitual truant” to be any student of elementary school age through age 16 who has:

  • Accumulated 15 or more unexcused absences in a three-month period;
  • Without the knowledge of their parent or guardian; and
  • Are subjected to compulsory school attendance.

Florida has begun to conduct truancy sweeps on parents/guardians, and many have been charged with contributing to the delinquency of a minor and failing to comply with attendance laws. Jacksonville, FL is particularly known for aggressively pursuing truancy. Since they have begun to conduct truancy sweeps on parents/guardians, school attendance is at a 10-year high. While parents can face jail time, counseling, and fines, children also face punishment of their own. If a child is cited for habitual unexcused absences, they may be taken directly to a juvenile detention center. The juvenile court can then issue several different types of punishments on minors including:

  • Additional School: A truant student may be ordered to enroll in summer school or weekend classes in order to make up for the days of school missed.
  • Drug Screening: The court will sometimes require truant teens to undergo random drug testing and a drug education class if drug abuse is suspected to be part of the reasons for truancy.
  • Behavioral Therapy: A truant child may be required to attend counseling sessions.
  • Juvenile Detention: There is a possibility that the court will order a teen to a detention center or group home, particularly if this is not their first offense.
  • Probation: A court could place a teen on probation for a certain period of time where they would be required to periodically check in with a probation officer.
  • Suspended License: Public schools are required to provide the Department of Highway Safety and Motor Vehicles with a truant student’s legal name, sex, date of birth, and social security number. These students may not be issued a driver’s license or learner driver’s license from the Department. If they already have a previously issued driver’s license or learner driver’s license, their license could be suspended.

Impact on Low Income Students:

The Center for American Progress found that in 2012, an estimated 7.5 million students were chronically absent nationwide and, according to several other studies, low-income students and students of color were more likely to be absent.  Furthermore, research from Johns Hopkins University suggests that of the 15 percent of American students who are chronically absent, a quarter miss school primarily because their families can’t afford transportation or the students are expected to babysit younger siblings or care for sick relatives. The economic burdens that truant students’ families often already face can be compounded by the hefty fines they are ordered to pay under truancy laws.

Impact on Special Education Students:

Many children with learning disabilities are bullied in schools, leading some children scared to go to school out of fear that they might be bullied. This fear of bullying, along with additional challenges in school (such as feeling left behind or underchallenged) can cause special education students to not want to attend school. There can be some assistance in avoiding truancy penalties for special education students if they have an Individualized Education Plan (IEP). To learn more about Individualized Education Plans and how to navigate them, check out our previous blogs: Individualized Education Plan (IEP) and 504 Plan Eligibility in Florida & Individual Education Plan Enhanced: Our Top Five Tips.

For students with special education needs, further requirements to prevent truancy charges are provided by the Individuals with Disabilities Education Act (IDEA). Public School Districts are required to assess special education students in all areas related to their disability, including the student’s functional performance. Truancy is related to the student’s performance, thus, if a student with special education needs is truant, the school district must conduct a Functional Behavioral Assessment in order to determine the reason behind the truancy. Results of these assessments can be then utilized to develop an appropriate Positive Behavior Support Plan to address the truant behavior, hopefully avoiding steep financial penalties and jail time.

Overall:

Truancy laws can be difficult to navigate and oftentimes have a disproportionate impact on low income and special education students. At the Orlando Law Group, our attorneys help parents understand their legal rights and options for their child’s education. We represent parents in obtaining appropriate legal services for their children and help parents in advocating for their children and their right to a safe and effective education. If you have questions about anything discussed in this article or other legal matters related to education, give our office a call at 407-512-4394.

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Estate Planning for LGBTQ+ Couples

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Overview

It has been a little over seven (7) years since Obergefell v. Hodges made same-sex marriage legal in all 50 states. This historic Supreme Court decision opened the legal benefits of marriage to same-sex couples all across the country, including easing the process of estate planning. Today, married same-sex and LGBTQ+ couples’ estate planning is largely the same as estate planning for any other married couple. However, LGBTQ+ couples are less likely to get legally married and they may have children where only one or none of the partners is the child’s biological parent. This can complicate the estate planning process and is why estate planning is even more important for LGBTQ+ couples.

With the overturn of Roe v. Wade, there has been increased discussion about the future of other privacy rights, including same-sex marriage. In his sole concurring opinion, Justice Clarence Thomas indicated that the Supreme Court should reconsider previous rulings regarding privacy rights, including those that established the right to contraception, same-sex marriage, and protections for same-sex relationships. While no one wants to think of what would happen if they passed away, it is necessary to make sure your possessions get passed along the way you prefer, and not caught in the convoluted purgatory of probate. Read more about estate planning steps you should consider, particularly in light of recent political developments.

The Importance of Estate Planning

Careful and well-thought-out estate planning is essential for anyone who wants to protect their assets and loved ones regardless of sexual orientation; however, experts agree that it is likely more critical for same-sex couples and families due to marriage equality laws. While there is no need to draft estate planning differently from heterosexual spouses, same-sex couples need to make an effort to check the estate planning documents they already have to make sure they have language consistent with current laws, and, if couples do not already have one, to begin developing an estate plan. A typical estate plan may include:

  • A Last Will and Testament – the primary document regulating your wishes as regards inheritance and guardianship of persons (such as minor children) and property;
  • A Trust – protects assets for the benefit of yourself and/or specific persons;
  • A Living Will (also called a Designation of Health Care Surrogate) – specifies your intent in regard to decisions on your physical well-being and end-of-life arrangements;
  • A HIPAA Release and Authorization – allows person(s) designated by you to receive your confidential health information;
  • A Durable Power of Attorney – enables a trusted Agent to make financial and/or medical decisions for you in the event that you are incapacitated; and

If you die without a will or trust, state laws of intestate succession will determine who inherits from you, potentially leaving your partner of many years with nothing. This can be particularly important if you are estranged from your family or expect any family conflict over the assets you will leave. In Florida, Florida Statute Sections 732.101-109 explains that when someone passes away without a will, or trust, all assets go to their closest relatives. The first to inherit is the surviving spouse; however, there must be a valid, legal marriage to be a surviving spouse. This is particularly important for LGBTQ+ couples, as the recent U.S. Census Bureau Data reports that about 42% of couples in the nearly 1 million same-sex households in the United States were unmarried partners. Without sufficient estate planning in place, an unmarried partner is likely to be overlooked in asset distribution. Taking control of your estate and the division of your assets through estate planning means that you can protect yourself and your assets and provide for your loved ones by your own intentions, and not that of the state. Estate planning is important for everyone, regardless of relationship or family status. For members of the LGBTQ+ community, it is even more important to treat these matters formally, without relying on default rules of state law.

Even if you already have an estate plan, it is imperative that you revisit that plan in order to ensure that it remains relevant under your current family and financial circumstances. If your estate planning documents were created before same-sex marriage was legalized across the country and you have since married, it is important for all of your documents to have consistent language that reflects that. The Human Rights Campaign offers a comprehensive step-by-step guide on estate planning for LGBTQ+ couples and their families for free that explains this importance.

Extra Assistance with a Special Deal

We recognize the sense of urgency that many couples are facing in light of the Supreme Court decision and hope to alleviate some of this burden by offering a special deal to LGBTQ+ couples in their estate planning matters. We are currently offering FREE health care estate planning documents including Combination Living Wills and HIPAA Release and Authorizations as well as Durable Power of Attorneys to LGBT+ couples in order to help you and your family plan for the future. Call 407-512-4394 to discuss scheduling a consultation with an estate planning attorney to take advantage of this opportunity for the months of August and September.

Overall

This article is not a substitute for consulting with an estate planning lawyer at our firm who is well-versed in the issues facing LGBTQ+ individuals, couples, and families. Thorough and proper estate planning is vital to ensuring that your wishes are carried out during your lifetime, and that your assets are passed along to your loved ones in the manner you desire after your death, which can potentially be more complex for the LGBTQ+ community. Our experienced estate planning attorneys understand the challenges LGBTQ+ individuals of all marital statuses face. If you have questions about anything discussed here or involving estate planning, feel free to give us a call at 407-512-4394. We bring experience and sensitivity when assisting members of the LGBTQ+ community in planning for asset protection, incapacity, and end-of-life issues.

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Special Education Matters: Public vs. Private vs. Charter Schools

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Overview:

With back-to-school right around the corner, many parents are beginning to ask themselves what type of school is best for their children. This question is particularly important for parents with children that require special education services. While there is not a right or wrong choice for your child, it is important to know the legal requirements that each type of schooling system must meet for special needs students in order to make the most informed decision you can. Regardless of which school system you choose, one of the most important things you can do as a parent is to be your child’s advocate and get involved in their education.

Public Schools:

The federal Individuals with Disabilities Education Act (IDEA) is a law that makes available a free appropriate public education (FAPE) to eligible children with disabilities throughout the nation and ensures special education and related services for those children. Under this Act, special education and related services must be provided by the public school system at no cost to the parent, meet the standards of the state, and be in conformity with the student’s individual education plan (IEP). Special needs include learning disabilities, such as autism, but it also includes gifted learners. Florida state law and IDEA both require school districts to provide special instruction and services to gifted students. IDEA also funds early intervention for children with recognizable disabilities to minimize the problem in developmental delay. Additionally, under Section 504 of the Rehabilitation Act of 1973, public schools cannot discriminate based on their disability, meaning they must accept all students who apply, including those with disabilities. The Individualized Education Program (IEP) is also a major aspect of IDEA. To learn more about individualized education plans and how to navigate them, check out our previous blogs: Individualized Education Plan (IEP) and 504 Plan Eligibility in Florida & Individual Education Plan Enhanced: Our Top Five Tips. Although IDEA has been incredibly successful in improving the quality of education for this population, there are still continued challenges. Some of those challenges include poor assessments, limited training for teachers, large class sizes, and eligibility barriers that prevent students from receiving special education. This can sometimes cause parents to seek other options, such as private and charter schools.

Private Schools:

While public schools are bound to a plethora of state and federal laws, the same cannot always be said about private schools. The Individuals with Disabilities Education Act (IDEA 2004), which covers special education law, does not apply to individuals placed in private schools (including religious schools) by their parents. This does not automatically mean that private schools will not accommodate students with special education needs. In fact, many private schools will voluntarily follow a similar framework as public schools for academic accommodations; however, most will have a unique process for accommodations that is specific only to that school’s program. It is extremely important to discuss early on with the school principal or administrator about that process, and to receive that information in writing.

Depending on the amount of federal funding the school receives, if any, the school may be required to follow portions of Section 504, meaning the school cannot discriminate against a child with a disability for reasons related to the disability and might be responsible for providing modifications and accommodations. For example, most private schools are willing to provide some minor classroom accommodations (such as extended time for tests), but they are not required to do more. Because private schools are not bound to the same regulations and protections regarding special education as public schools, if an issue or disagreement does arise within your child’s private school, it may be more difficult to challenge that decision by way of legal action. This also means that unlike public schools, private schools can accept or reject any students they choose to. Private schools can be a phenomenal option if you have found that public schools are not meeting your child’s needs. While they are not obligated to meet the minimums of education law, some schools are tailored for students with ADHD and learning disabilities, and will voluntarily exceed the minimums required of public schools. This can make them a wonderful option for families who did not feel as though their children’s needs were met by the public school system. There is a third option that is becoming increasingly common: charter schools.

Charter Schools:

According to the Florida Department of Education, charter schools are among the fastest growing school choice options in Florida, with student enrollment now topping 341,900 students in the 2020-21 school year. While state laws often grant charter schools some freedom from meeting public education regulations, charter schools must follow all federal laws that apply to any other public school, including IDEA. Florida law relating to charter school education requires that students with disabilities have an equal opportunity of being selected for enrollment in a charter school (Section 1002.33). Because charter schools are still public schools, it is against the law for charter schools to discourage kids with disabilities from attending or applying. However, in reality, this legal regulation does not always necessarily work out in favor of special education students as some parents might hope. Note that all students do need to apply to attend charter schools, which often have very limited spots available, making it challenging to get in.

Overall:

While there is no “one size fits all” solution to determining the best school system for your child, it is always important to take your child’s unique needs along with legal requirements into consideration. At the end of the day, the ultimate goal is to find an environment that allows your child to reach their full potential where they feel comfortable and confident. If you have any questions at all, call us at 407.512.4394. When advocating for your child, you can have an attorney help you understand yours and your child’s rights, and to make sure nothing is getting overlooked when tailoring your child’s education to suit their needs best. We have experienced education law attorneys and staff that have worked hard to make their children’s, and their clients’ children’s special education experiences the best they can be. We are here to help you, and care deeply about this aspect of what we do as a full-service law firm.

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The Ins and Outs of the Association Collections Process

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Most Associations have the legal right to place a lien on a home or unit to secure the payment of past due assessments.  To determine if your Association has this right, you will look to your Association’s Declaration of Covenants, Conditions and Restrictions. In the Declaration, there will be a section that details what happens if an owner is delinquent in the payment of assessment to the Association and it typically grants the Association the right to secure that debt by recording a lien against the owner’s property. You also have the right to foreclosure on that lien similar to the way a bank forecloses on a mortgage. But what does this really mean? It means that an Association does not have to sit and wait for the sale of the property for the Association to get paid, as the Association can force a sale on the property. Remember, in a foreclosure action, the primary goal of the Association is not to take title to a property but to force a sale on that property so that the Association can retrieve the money owed to the Association.

How does the Foreclosure Process Work?

  • First, the Association must send the required statutory letters to the delinquent homeowner and have a lien recorded against the property.
  • Then, a lawsuit is filed and served which results in a court judgment. If the judgment is not paid, the court orders a sale of the property at a judicial sale.
  • Anyone may bid at a judicial sale. The money paid at the sale is applied by the Court to pay the outstanding judgment.  The Association may also bid at the sale.  For bidding purposes, the Association is allowed to use an amount of the court judgment like cash at the sale to bid on the property if it chooses.
  • In a foreclosure action, all inferior lien interests are extinguished and the winning bidder at the judicial sale takes title free of all inferior interests.
  • A Condo or HOA lien is a second lien position to a first mortgage. If the property is being foreclosed, the bidder at that sale takes the home or unit free and clear of all inferior liens, however, the property is still subject to the superior first mortgage. Therefore, a bidder will take into account the remaining mortgage on the property and bid accordingly.
  • An Association is not required to bid in its foreclosure action and therefore is not required to take ownership of the property.

What if there is a Tenant in the property?

  • If a homeowner is delinquent in the payment of his/her obligations to the Association, Florida Statute allows an Association to recover these funds from any tenants occupying the property.
  • The statute allows an Association to collect the entire rent check from a tenant of a delinquent homeowner without having to file the foreclosure lawsuit by sending a demand letter to the tenant informing him/her of the obligation (including amounts and when they are due) and directing the tenant to send the necessary amounts to the Association.
  • If the tenant (with a valid lease) fails to send the Association the rent checks, the Statute allows the Association to evict the tenant from the property.
  • The eviction process includes: a 3-day eviction notice posted on the property, a lawsuit filed against the tenant, and the tenant served with an eviction summons.
  • The tenant has five days to file an answer and deposit the amount in question with the court. If no answer is filed, the Association will file a motion and order a default judgment for eviction.  A judgment for eviction will be entered and a Writ of Ejectment will be issued.
  • An Association should proceed with caution when considering evicting a tenant. Consider all factors involved. If the tenant is taking care of the property and is a good neighbor, it is most likely that the delinquent homeowner convinced the tenant that the delinquency had been taken care of. If the Association evicts the tenant, this could result in a vacant, non-maintained property.  However, if the Association continues with a Court ordered receivership through the foreclosure against the homeowner, it will most likely collect rent and keep the property occupied.
  • In a receivership, the tenant must be served with the foreclosure complaint. Next, a motion is filed with the Court and a Judge signs a receivership order.  This order is then served on the tenant instructing the tenant to make his/her rental payments to the receiver who will disburse the funds to the Association. If the tenant fails to comply with the receivership order the Judge will issue a warrant for the tenant’s arrest. Typically, receiverships are reserved for after a complaint has been filed in a foreclosure action against the homeowner.

Other Frequent Questions Regarding Association Collections

  • If the Association takes title to a property in a foreclosure, does the Association have to pay the mortgage or property taxes?

There are two common misconceptions that often keep Associations from proceeding forward on their right to foreclose on a property.

  1. An Association is NOT obligated to pay the mortgage on the property. If the mortgage is not paid or other arrangements made with the lender, eventually the bank will take possession away from the Association.  However, the lender cannot sue the Association for mortgage payments.
  2. An Association is NOT required to pay the property taxes. If the taxes are not paid, after two years possession of the property may be taken from the Association through a tax deed sale.  However, the County cannot sue the Association to collect or otherwise make the Association pay these taxes.
  • How is a Personal Judgment different from a lien foreclosure?

Unlike in a lien foreclosure action, in a personal judgment, the parties (Association and homeowner) are required to attend a mandatory mediation. If the homeowner attends, a settlement can sometimes be reached.  If a settlement cannot be reached, or if the homeowner does not participate in the mediation, a hearing will be scheduled.  A personal money judgment will be entered if the Association prevails at the hearing.

  • What is the process for a Personal Judgement?

The homeowner will be sent a 30-day Demand Letter requesting payment in full.  This letter is to satisfy the requirements of the Federal Fair Debt Collection Practices Act.  If at the conclusion of the demand letter period a response has not been received, or full payment has not been received, a one count complaint will be filed in county court that will be followed by the mediation process.

  • Why is it important to have a Personal Judgement recorded?

The main purpose of recording the judgment is to encumber the assets of the homeowner to prevent the homeowner from selling or refinancing any of the assets without first satisfying the judgment.  At a minimum, this judgment would be recorded in the public records and become a lien on any non-homestead property located in the County that it is recorded.

  • What rights does the Association have in trying to collect on a Personal Judgement?

The Association has the right to proceed against the property of the homeowner through Writ of Execution, garnishment, or other judicial processes.

  • What steps does the Association need to take to recover on a Personal Judgement?

Some of the steps that need to be taken include: a Writ of Execution delivered to the sheriff or marshal, the sheriff or marshal levying upon assets of the homeowner, and the sheriff or marshal selling as much personal property and real property as has been levied upon in order to satisfy the judgment.

  • What are the different types of bankruptcy that a homeowner can file?

There are three types of bankruptcy: Chapters 11, 7, and 13.  The two that usually affect Associations are Chapter 7 and 13.  In Chapter 7, the debtor has little or no income; and their personal obligation towards most of their debt is discharged.  Chapter 13, on the other hand, is a debt repayment plan.  Please note that most often bankruptcy will only dismiss a homeowner’s personal obligation and does not affect the Association’s right to foreclose on its lien. But in recent years we have seen the Association lien being stripped in Chapter 7 cases.

  • What are pre-petition and post-petition assessments?

Everything that the homeowner owed up to the date the bankruptcy was filed is pre-petition and is included in the bankruptcy proceedings. Everything from that date forward is post-petition.

  • If you do not receive official notice of the bankruptcy from the court do all the rules still apply?

Once you have actual knowledge of the filing, all the rules apply.  If the Association is not named, once the bankruptcy is completed the Association can pursue both a lien foreclosure and personal judgment against the homeowner for all delinquent assessments.  However, the association should not pursue any collection action against the homeowner/tenant in property while the bankruptcy is pending.

  • How do you collect post-petition assessments?

A homeowner is supposed to automatically make their post-petition assessments.  However, very often this does not happen.  In this case the Association has two options: wait until the stay is lifted (bankruptcy is completed) and then go after the homeowner, OR apply for relief from stay from the court and then go after the homeowner, while the bankruptcy is in progress.

These are general guidelines and do not apply to all situations equally. Each Association and each situation may add its unique challenges that the Board must take into account when making decisions. However, this basic information along with any Association’s Governing documents as well as the assistance of an experienced Association Law Attorney should be sufficient for an Association to adopt an appropriate collection policy suitable for their community that will be fair and equitable to all its residents.

For any and all questions relating to the collections process; or to the legal rights, obligations and operations of a Homeowners or Condominium Owners Association, please contact our office at 407-512-4394 to schedule a consultation with an Association Law Attorney.

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Pet Trusts

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Did you know that the American Veterinary Medical Association found that 85 percent of dog-owners and 76 percent of cat-owners think of their pets as family? We love our pets like family, so we should treat them as such. As a part of our families, pets deserve continuing care in the event of our incapacity or passing. One of the best ways to do this is to establish a pet trust. Trusts are not only for dogs and cats. A trust may be established under Florida law for all kinds of animal companions, including horses, turtles, birds, and more! Trusts can be extremely beneficial for long-living animals such as certain reptiles and birds that can live over 100 years and require specialized care. We at the Orlando Law Group care for our pets immensely, as you may be able to tell from our Facebook and Instagram pages showcasing the “Pets of OLG.”. As such, we want to let you know that a pet trust may be the exact thing you need in order to ensure your pets are well cared for after you have passed. Using a pet trust, you can leave money to be used for the care of your pet(s), put someone in charge of managing and spending that money, and include a set of written instructions created by you to ensure that your furry friend is well taken care of in the event of your incapacitation or death. Read on to learn more about setting up a Pet Trust in Florida!

Setting Up a Pet Trust

Once, pet trusts were considered a far-fetched idea. Now, Florida (along with the other 49 states) has established statutory provisions (F.S. §736.008) providing for the ability to create a pet trust for our beloved animals. A pet trust outlines who will care for your pets, for how long, and the exact maintenance terms desired. Florida is unique compared to some of the other states, in that it allows the trust to continue until the death of the last remaining pet, instead of limiting the length of the trust to 21 years. Importantly, a pet trust can only be set up for animals alive during your lifetime.

Should you have more than one animal that requires care, that is permitted as well. You have the ability to appoint a caregiver for your animal(s), as well as a trustee who will enforce the terms of the trust and ensure that the funds you have set aside for your pets are used the way you intended. The trustee can verify that your pets are being cared for by their appointed caregiver in the way you have outlined, by way of receipts and/or medical bills, and if those funds are not being used in accordance with the terms of your trust, your trustee may have the ability to remove the person appointed to care for your animals and replace them with an alternate person. Within the pet trust, you can also specify your choices for an alternate person or persons to care for your pets in the event that your first choice of caregiver is removed by the trustee, incapacitated or passes away. Additionally, unless the trust documents specifically state otherwise, if the amount in the trust exceeds what is needed to pay for the animal’s care, it will be administered either as part of the grantor’s estate or to the grantor himself/herself if living. A pet trust works the same as a revocable living trust. You, the grantor, create a legal trust entity and fund the trust by placing the necessary money and assets into a separate account in the trust’s name.

You are the one who knows your pet best, so it is important to leave a detailed plan for the care of the pet. Some important information you can have in your pet trust could include necessary medication for your pet to be administered, should they have any medical issues; their likes, their dislikes, which veterinarian you prefer they go to, their activity level and, any past, present, or future concerns you may have regarding your pet(s). You may also include whether you would like your pet cremated or buried after they have passed. All of these are important to ensuring the well-being of the pet, and outlining such will allow you to make sure your animal(s) will be properly cared for.

A pet trust is the best way to ensure that your pets are never sent to a shelter, sold or placed in the wrong hands in the event of your passing. Because the trust includes necessary funds to pay for your pets’ care, having a pet trust takes the burden off of your family or loved ones to financially provide for them after you are incapacitated or have passed away. Additionally, the detailed wishes in the trust guarantee that your pet is cared for just the way that you want even after you are no longer around.

There is much more to know about pet trusts before you are able to decide whether they are the correct estate planning tool for you. If creating a pet trust is something you may be interested in, be sure to consult with a knowledgeable estate and trust attorney.

Protecting Your Pet is Just a Phone Call Away.

Do you love your pets like any other member of your family? Do you ever cringe at the thought of your pet passing away? Do you ever wonder what would happen to them if you passed first? Don’t leave planning for your future and that of your furry friends to chance. All it takes is one phone call to the Orlando Law Group to ensure that your wishes are followed, and your loved ones (both animal and human) are cared for when you are gone. Call us at 407.512.4394 to receive only assistance regarding your estate planning but peace of mind as well. Our experienced attorneys would be happy to help you with any estate planning matters and questions you may have.

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Breaking Down Florida Bill 4-D

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Overview

It was just over a year ago that 98 lives were tragically lost when the Champlain Towers South condominium complex collapsed in Surfside, Florida, becoming one of the deadliest residential building collapses in United States history. While general legislation was stalled during the official legislative session, legislation regarding the collapse was passed in a special session. During the third special session of the year, Florida Legislators passed Senate Bill 4-D, which was subsequently signed into law by Florida Governor Ron DeSantis on May 26, 2022. The new law requires significant changes to the recertification process for condominiums; modifies Florida Statutes Chapters 553, 718, 719 and 720; and establishes new reserve rules. In this article we will cover what the law entails and the changes for both condominium associations and residents alike.

Recertification

One of the main changes that the law makes is that there are new requirements in the recertification process of condominiums. The law now requires statewide recertification of condominiums that are over three stories tall. Recertification will be required after 30 years, or 25 years if the building is within three (3) miles of the coast, and every ten (10) years thereafter. At the time of the Surfside collapse, only two of Florida’s 67 counties, Miami-Dade and Broward, had condominium recertification programs. At the time of its collapse, the Champlain Towers South Condominium Complex was 40 years old and was actively undergoing the 40-year-recertification process required by Miami-Dade.

This new legislation will have a significant impact on existing units in the state of Florida. According to a legislative analysis conducted earlier this year, there are more than 1.5 million condominium units in Florida that are operated by nearly 28,000 associations. Of those units, over 912,000 are older than 30 years and are home to more than 2 million residents. This means that hundreds of thousands of units that were not previously technically required to be reinspected and recertified by a licensed architect or engineer years after being built and occupied will now be subject to the recertification requirement. While there is not a standard cost for recertification, the three main factors that influence the overall price are: the size of the building (i.e. number and size of individual units), complexity of the structure, and accessibility.

An engineer will provide you with a proposal once they have a good understanding of your condominium building.  Some will provide a price per unit. These can range from as little as $10 per door to as much as $300 per door (depending on a multitude of factors).  Other engineers provide a price based on square footage.  Some even take into consideration the location of the condominium and its age. Due to the variety of factors that may go into the total price, it is important to receive and consider multiple quotes.

While some of the law’s new provisions will not take full effect until the year 2024, there is a growing concern regarding a future shortage of licensed Florida architects and structural engineers qualified to recertify condominiums. As shortages tend to drive up prices, it is important to act soon so as to not have to deal with increased costs in the future, when recertification is made fully mandatory by law.

Reserve Funds

Another important aspect of the new law is the requirement for condominium associations to have enough money in their reserves to cover all repairs necessary to maintain the structural integrity (building, floors, windows, plumbing, electrical, etc.) of all buildings that are three stories or higher. This will likely come as a shock to many associations because before the new law passed in May, condo associations in Florida could choose to waive their reserves through a vote, effectively meaning they did not have to reserve any funds at all. Luckily for condominium associations, there is a grace period for current condo associations to make the necessary changes. Existing associations must meet this requirement before the year 2025. However, note that it is never too early to begin preparing to meet this requirement in the future.

Other Important Laws Impacting Condos

Some additional condominium laws that recently went into effect that you and your condominium association should be aware of are:

  • SB 630 was unanimously passed and subsequently signed into law on June 16, 2021 and makes additional significant changes to existing condominium law. One of the key changes is that it prohibits condominium associations from requiring unit owners to state a purpose for accessing official records. It also establishes the right of tenants to access a copy of the Declaration, Bylaws, and Rules and Regulations. It does clarify, however, that those are the only records accessible to tenants. Additionally, the law limits the time required for keeping competitive bids in the condo association’s official records to one (1) year. Furthermore, condominium associations and management companies are now allowed to use the same legal counsel, which was previously prohibited. This is a non-exhaustive list, but you can access a copy of the official summary of the bill using this link.
  • SB 56 was unanimously passed and signed into law on June 16, 2021. Under the law, condo associations must wait 45 days to foreclose a claim of lien (a legal claim to a property used as security against any amount of money or services owed to another entity) after written notice is given to the unit owner. It also introduces new requirements on how associations may deliver or change their methods of delivery for assessments and account statements. This is a non-exhaustive list, but you can access a copy of the official summary of the bill using this link.

Overall

If you are a member of a condominium association or on the Board of an association and are having concerns regarding the requirements outlined in Senate Bill 4-D or other recent condo laws and their applicability to your association, please contact The Orlando Law Group at 407-512- 4394 and schedule an appointment to speak with one of our outstanding attorneys about your concerns.

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Witness Woes: The Complicated Matter of Family Members Serving as Witnesses on a Deed

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Overview

Did you know that Florida is one of only five states (the others being Louisiana, Georgia, Connecticut, and South Carolina) that require witnesses for the notarization and recording of deeds? In common law, a deed is any legal instrument in writing which passes, affirms, or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. While the process may sound simple, it can often become complicated by the many laws that govern deeds. One of the steps that can complicate the transfer process is the requirement for Witness signatures.

What is a Deed?

A deed is a physical document that conveys ownership of a property. You must have a deed after you purchase property. Deeds transfer ownership of real property from a Grantor (seller) to a Grantee (buyer). If you would like to learn more about the various types of Deeds and their uses, check out our previous article: “Clarifying What A Deed Is – Four Types and Uses.”

What is a Signature Witness?

A witness signature shows that a deed is valid and enforceable by confirming that it was signed on an exact date. The signature is also used to demonstrate that the witness was present when the Grantor signed the document. In Florida, Statute §689.01 requires two witnesses for a Deed of Trust, Grant Deed, Warranty Deed, and Quit Claim Deed. Witnesses are important in order to prevent fraud, which can be common when dealing with the transfer of property. Florida requires a witness to appear before a notary and provide proper identification, including a state-issued driver’s license, government ID, etc. In January 2020, the state of Florida enacted laws permitting remote online notary (RON), after the completion of an application and training requirements. Once a signer is selected, they should sign in blue or black ink in the presence of the notary. Florida requires witnesses to property deeds just in case there are problems in the future regarding the legitimacy of the deed. If any dispute concerning the transaction arises, having third parties who were present at the singing is beneficial. Witnesses can be called to testify, though they rarely are, in order to confirm the deed was signed by the Grantor on the date specified.

What are the Requirements to be a Witness?

There are not many laws governing who can and cannot serve as a witness, but there are some general regulations. A signature witness must be an adult (over the age of 18), be of sound mind, not under the influence of drugs, and not be a party to the deed or have any financial interest in it. Outside of these minimal requirements, there is little else governing who can be a witness to a deed. This can leave many people puzzled as to whether a family member, who does not have any financial interest in the deed, can serve as a witness.

Can My Family Member Serve as a Witness?

Unfortunately, due to the lack of laws surrounding signature witnesses there is not one clear, right answer. In short, a family member who does not have any interest in the deed and is not a party to the deed can legally serve as a signature witness. There are no specific laws preventing a family member from serving as a witness; however, the receiving agency can have the discretion to ask for a different witness. While it may be legal to have a family member serve as a witness to a deed, this is not recommended for practical reasons.

Remember, the purpose of a witness is to testify if the deed is ever challenged. If the witness is a close family member, such as a brother or daughter, it is likely that they will be met with disbelief and their neutrality, and thus reliability, will be called into question. While having a family member witness your deed may not invalidate it, it may cause lengthy, costly trouble further down the road if the deed was to be challenged.

Conclusion

While there is technically no law preventing a close family member from serving as a witness to a deed (as long as they have no financial interest in it), it is not practical to do so. The purpose of a witness is to be able to reliably testify to the validity of the deed if it were ever called into question. By having a close family member serve as a witness, their credibility and neutrality will likely be called into question. It is best practice to have a witness who is independent of the proceedings so that they are able to provide unbiased testimony if the deed is ever challenged.

If you have questions about anything discussed here or any of your legal needs, feel free to give us a call at 407-512-4394. You will reach our Waterford Lakes office, which can connect you to any of our other numerous locations. Our attorneys would be happy to answer any questions that you have regarding real estate.

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Pride Month

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June is Pride Month, and here at The Orlando Law Group we are proud to support local LGBTQ+ owned businesses and initiatives! This is particularly important here in the City Beautiful, as Orlando has earned a perfect score from the Human Rights Campaign’s Municipal Equality Index, which measures the LGBTQ+ inclusiveness of city policies, and we are home to the most households owned by same-sex couples in the entire state of Florida and the fourth most in metropolitan areas nationwide. We are proud to cater to a diverse range of clientele, serving each person who walks in the door with the same amount of time, level of service, and attention to detail!

The History of Pride Month

Pride Month is celebrated every year in June in order to commemorate the 1969 Stonewall Uprising, where New York City police raided the Stonewall Inn, a gay club located near Manhattan. The raid provoked a riot among bar patrons and nearby residents, leading to six days of protests. The Stonewall Riots served as a tremendous catalyst for the gay rights movement in the United States and around the world. The purpose of the month is to recognize the impact that lesbian, gay, bisexual, and transgender people have had on history both nationally and internationally. Today, celebrations of LGBTQ+ Pride Month include pride parades, picnics, parties, and memorials, attracting millions of participants around the world.

Showing Our Support

At The Orlando Law Group, we are delighted to support members of the LGBTQ+ community, not only through our continued support and sponsorship of many LGBTQ+ businesses and initiatives, but also through our variety of legal services offered. We recognize that there is nothing worse than dealing with discrimination and judgement, while already navigating the complex legal world. That is why at The Orlando Law Group, we are firmly committed to excellent representation for all clients. We are proud to continue to represent all members of the LGBTQ+ community in any family law, including adoption, or estate planning matters they may have.

Adoption is a wonderful way to grow a family, and the presence of an adoption attorney can help you avoid any potential legal mistakes or setbacks as you welcome your newest addition. Florida was the last state to rule the ban on gay and lesbian adoption as unconstitutional in 2010, taking an important step towards equality. For adoptions through state-run agencies or private agencies that receive state funding, you cannot be discriminated against based upon your sexual orientation. To learn more about different types of adoption and the laws surrounding adoption, visit our previous article: “Know The Law When Adopting a Child.”

Losing a loved one is never an easy experience, but estate planning is vital in lightening the pain of the process. While the legalization of same-sex marriage in 2015 was a significant step towards equality, it is not a 100% fallback in estate planning. For unmarried couples, a comprehensive estate plan allows couples to protect each other with or without the benefits of marriage. Some couples believe that all they need is a will in case one partner passes away, but a will by itself does not successfully protect the surviving spouse if one partner dies, and it may not adequately protect any children. It also does nothing if one of the partners were to become incapacitated. Having an attorney by your side to plan your estate will protect your spouse, partner, or any children if anything were to happen.

The attorneys of The Orlando Law Group are well-equipped with the knowledge and experience to aid in your quest to grow your family, plan your estate, or any other family matter you may have. Call us at 407.512.4394 and schedule a consultation today. Happy Pride!

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Why You Need an Employee Manual + a Special Summer Deal

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Overview

Despite significant job losses during the height of the pandemic, the start of Spring appears to have rejuvenated the growth of businesses, with 431,000 jobs added in March alone. With the excitement of gaining new team members also comes the stress of ensuring that new employees are aware of company policy, environment, expectations, and more. This is when an employee manual steps in to save the day. An employee handbook is a compilation of your business’ procedures, policies, expectations and working conditions and acts as the foundation for your company’s operation. Employee handbooks provide essential guidance to new employees regarding benefits, conflict resolution, anti-discrimination policies, conduct standards, work schedules, workplace safety and security, and much more. These manuals are key documents for any business to have because they set the standard for your company’s culture, environment and essential policies. Not only do employee handbooks help your employees to thrive in their new roles; they also protect your business against potential lawsuits, liabilities and claims. These guides, when crafted by a skilled legal professional, will surely help your company blossom this summer as your business continues to grow and expand!

Key Aspects of an Employee Manual

Employee handbooks will vary in length and complexity depending on your business needs, industry, and size. Important provisions in an employee manual include:

  • Benefits and compensation;
  • Communication policy;
  • Nondiscrimination policy;
  • Harassment policy;
  • Employee dress code;
  • Separation/termination policy;
  • Workplace safety guidelines;
  • Policies for sick days and vacation requests;
  • Company code of ethics; and
  • Disciplinary procedures.

These provisions ensure employees have a clear understanding of their obligations and rights while also protecting them from potential harm. Employee manuals foster a positive workplace culture founded in clear communication and standardized policies, improving your company’s efficiency and work environment.

Employee handbooks not only protect your employees from harm and serve as an important reference for employees. They can also help to protect your business from claims, such as wrongful termination, retaliation, and discrimination, and work to mitigate the risks of costly legal action by supporting compliance with Human Resources (HR). Seeing as employee turnover is expected to rise by nearly 20% this year, employee handbooks can be important tools to support retention by creating an environment of mutual respect and keeping employees motivated. Additionally, employee handbooks are crucial during the onboarding process, by providing new employees with both clear expectations and a connection with the company’s mission. This is critical in maintaining positive retention rates, as 69% of employees are more likely to stay with a company for three years if they experienced wonderful onboarding.

Benefits of Employee Handbooks

Employee handbooks provide your company with a multitude of benefits no matter the size. A well-written employee manual creates a clear foundation for management to ensure the entire business is on the same page with consistent enforcement of policy. This ensures that employees are treated equally and policies are fairly enforced. The main purpose of an employee handbook is to bridge the gap between the employer and the employees regarding expectations and requirements, and encourage accountability on both sides of the working relationship, helping your business thrive by preventing misunderstanding and dissatisfaction due to unclear policies. A “toxic” workplace culture has been driving a large amount of resignations in recent years, but a clear employee handbook can work to mitigate this. Handbooks allow for open discussions about company policy, making team members feel included and heard in the company, which limits dissatisfaction in the workplace.

Handbooks are also great at minimizing conflict within your company. A lack of clarity on policy and procedures often leads to conflict, as employees feel confused and frustrated. Employee handbooks also save your business essential time, as employees will have the manual as a point of reference whenever there are disputes, avoiding solvable HR issues getting out of hand and dragging out over a lengthy period of time.

In the technological age of remote working and digital communication, having direct, coherent company policies and expectations readily available for employees is essential. Additionally, clear expectations for how work-provided cell phones and laptops should be used ensure that company equipment is well taken care of. From the very first day on the job, employees will be immediately introduced to and immersed in the values and culture of your company, setting the standards for employment and creating a healthy workplace that addresses conflicts before they arise.

Importance of Attorney Guidance

It is important to have an attorney specialized in business law draft your handbook because they know the most important sections to be included, how to tailor the manual to suit the specific needs of your business, how to best protect your company’s rights, and how to avoid liability issues in the future. Clear communication is absolutely key to a successful business, which is why an attorney will work hard to ensure your company policies and expectations are explained in plain terms. The guidance of an experienced business law attorney can help to protect you from potentially costly legal battles in the future, as poorly written handbooks or boilerplate manuals downloaded from the internet may subject you to liability. A knowledgeable attorney will make certain that all necessary provisions are included in your handbook and that federal, state, and local labor laws are followed, and will determine the appropriate policies for your business to protect both you and your employees without sacrificing your company’s valuable mission, values, and vision.

A Can’t-Miss Summer Deal!

In order to help your business bloom in this summer heat, we are excited to offer an incredible deal on employee manuals! No matter how large or small your business is or whether it is 10 days or 10 years old, employee manuals are absolutely essential for clear communication of company expectations, policies, and aspirations. For only $500, you will receive the draft of one employee manual by an experienced business law attorney, with one set of edits requested by you included in the flat fee! In order to take advantage of this amazing deal, please call our office at 407-512-4394.

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The Florida Gopher Tortoise – A Slow Set-Back to Development *An Update and Information about the Florida Scrub-Jay*

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Overview

Florida is one of the most biodiverse states in the United States, ranking 7th with 4,368 known animal species. Due to this high amount of biodiversity, it is important to consider the animals that may reside on the land when purchasing property or purchasing land to build property on. If any species classified as endangered or threatened inhabits a property or piece of land, a lengthy and likely expensive process may ensue for a buyer. This includes the gopher tortoise and Florida scrub-jay. For more information about the gopher tortoise, visit our previous article titled, “The Florida Gopher Tortoise – A Slow Set-Back to Development.” The Florida scrub-jay is the only bird species that lives exclusively in Florida. These two species are both designated as “threatened” by the federal Endangered Species Act.

About the Florida Scrub-Jay

The Florida scrub-jay is a small blue and gray songbird species endemic to Florida. It is estimated that there are only 7,700-9,300 remaining Florida scrub-jays. Adult scrub-jays have a blue tail, head, and wings and a gray belly. Unlike blue jays, the Florida scrub-jay does not have any black markings or a crest.

The scrub-jays mate for life and form long-lasting pair bonds. They are cooperative breeders, meaning that the offspring of the breeding pair will typically stay for an additional year in order to help raise other young and defend the nest.

The Florida scrub-jay typically resides in dry, low-growing scrub oak in sandy soils. It can be found year-round in parts of Central and Southeast Florida, typically along old sand dunes near the coast and sandy deposits along rivers.

A Threatened Wildlife Species

Federally, the Florida scrub-jay is protected by both the U.S. Migratory Bird Treaty Act and by the federal Endangered Species Act. In Florida, the scrub-jay is protected as a threatened species under Florida’s Endangered and Threatened Species Rules. The primary threat to the bird is habitat destruction and fragmentation due to land development. The scrub-jay population has decreased by up to 90% in the past century due to these threats.

Under the Fish and Wildlife Conservation Commission’s Florida Endangered and Threatened Species List, Section 68A-27.003, the scrub-jay, its nest, and its eggs are all protected. Due to this protection, special permits are necessary to build in a scrub-jay zone. It is necessary to obtain a Federal Incident Take Permit from the U.S. Fish and Wildlife Service (USFWS) in order to build in an area with scrub-jays. To obtain the permit, the USFWS will analyze the land survey and building plans to determine if the scrub-jay will be impacted. If they determine that the Florida scrub-jay will be impacted, strategies for avoidance and minimization of impact will be required in order to obtain the permit. Typically, a 12-month lead time for permitting and mitigation will be necessary before clearing of the property is permitted. Additionally, due to its special habitat, Florida scrub-jays require regular prescribed burns performed by state and local officials.

Developers, builders, or landowners who develop within the protected area of a Florida scrub-jay or its nest without a permit may be in violation of the Endangered Species Act. Under the “Penalties and Enforcement” section of the Act, 16 U.S. Code § 1540, violation of the Act is  a Class “A” misdemeanor, punishable by up to 1 year in jail, and/or up to a $100,000 fine for individuals or up to $200,000 for corporations. Civil penalties range up to $25,000. Additionally, violations of the Migratory Bird Treaty Act are punishable by fines of a maximum of $5000 and or imprisoned for not more than six months for individuals, or $10,000 fine for an organization.

Avoiding Development or Property Issues Involving Florida Scrub-Jays

If you buy property that is in a scrub-jay zone, you are likely going to face a potentially costly and lengthy legal process. You will be required to get special permits from the United States Fish and Wildlife Service, along with permission before any changes are made to the lot.

It is important to start this process early on, as it may take up to a year before you receive approval on your permits. It is important to thoroughly go through these steps; however, because without them you face significant fines and potential legal ramifications.

Update: Developing or Purchasing Land Inhabited by Gopher Tortoises in Florida

Wildlands Conservation is a local 501(c)(3) non-profit conservation organization based out of Tampa, Florida. Their team is composed of ecologists, educators, and land managers who are focused on conserving lands for wildlife for generations to come. Their three main focuses are land management, research, and education.

As part of their mission to conserve lands, they offer Florida Fish and Wildlife Conservation Commission-approved training courses that meet the requirements for the Authorized Gopher Tortoise Agent permit. Their instructors are experts in gopher tortoise permitting, research, and relocation. Together, they have over 50 collective years of experience regarding gopher tortoise conservation. Their staff are also members of the Gopher Tortoise Council’s Executive Committee.

According to their website, the non-profit offers gopher tortoise permitting; surveying; mapping; capture and relocation via mechanical excavation, bucket and live trapping, and hand shovel excavation; recipient site permitting and monitoring; identification of potential recipient sites; tortoise population and vegetation monitoring; line transect distance sampling (LTDS) surveys and burrow scoping; and authorized Gopher Tortoise Agent Training Courses.

Wildlands Conservation offers these services, but they emphasize that there is no standard cost, since each project is different. The Florida Fish and Wildlife Conservation Commission provides a Gopher Tortoise Permitting Guidelines Guide, which outlines the duration and costs typically associated with permitting and removal.

For more information, visit their website at: www.wildlandsconservation.org.

A Piece of Advice in Dealing with Endangered Species in Land Development

There are free resources online through your county’s GIS mapping system in order to determine if the property you are considering purchasing is in a zone which may contain a protected species. You can also call your county’s Planning and Zoning Department if an online system is unavailable. The important thing to keep in mind throughout this process is to always plan ahead of time and have patience, as these permits and approval processes typically take around a year to complete. Remember, if you are ever in doubt that you are purchasing a property or planning to develop a piece of land which contains a protected species, it is advised to seek the assistance of a professional, and to request and complete a thorough survey of the area before you begin your project or purchase a property.

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Do I need a personal injury lawyer?

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Did you know? Every year 1.3 million people die from car accidents and approximately 25 million are injured. You may be driving safely, but it is others, who are distracted or drunk that are putting you and your loved ones at risk. If you have been involved in a car accident, the best thing to do is speak with a personal injury lawyer. Most car accident lawyer consultations are free and it is important to know what your options are and what you should do next.

How do you know when you need the help of an attorney after a car accident in St. Cloud, Winter Garden, Altamonte Springs, Waterford Lakes or Orlando?

Filing a claim:

You may need to file a claim with the at fault driver’s insurance. The insurance company may also want a recorded statement. This can be overwhelming if this is the first time you have had to handle this. You may also be injured and need to focus on healing.  An experienced lawyer will have substantial experience dealing with insurance companies.  Additionally, having an accident attorney handling the claim may help insurance companies take you more seriously and they may be more open to settlement is a lawsuit seems imminent.

Settlement:

If an insurance company offers you a sum to settle your claim, you should not agree to settle and should not sign any agreements without consulting a personal injury or car accident lawyer first. Insurance companies often offer money right away and this a well-known tactic to prevent substantial claims from being filed.

Organizing a comprehensive settlement demand can be overwhelming especially if you are injured.  A car accident attorney is well versed in putting together a demand that clearly lays out your injuries and requested compensation.  Personal injury attorneys have the skills to present your case in an efficient manner.

Medical bills and liens:

Understanding the complex interactions between your car and health insurances as well as your PIP insurance is frustrating. Many people do not understand that you must pay back your health insurance as well as any providers who weren’t fully compensated out of the settlement money you receive. An experienced attorney can help you navigate this and may even be able to get reductions on some of your medical bills. It’s important to remember that insurance companies are not on your side, they are there to protect their insured and their bottom line.

When trying to recover money for injuries, you’re up against the insurance company, not the at-fault driver. Many people can be taken advantage without the knowledge of a car accident attorney. Additionally, you may miss medical bills and liens if you don’t know what to look for.  If you have been in a car accident, you can call a personal injury attorney at our office 407-512-4394, for a free consult in St. Cloud, Winter Garden, Altamonte Springs, Waterford Lakes or Orlando.

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Are credit reporting agencies still reporting medical debts?

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You may have heard that credit reports are no longer reporting medical debts. After reviewing the report put out by Transunion, it appears this isn’t exactly correct.

Like many Americans coming out of the Covid pandemic, you may be faced with large medical debt. You may be hopeful reading that credit reporting agencies won’t be reporting medical debt but the truth is, there is only minor changes to the reporting practices of medical debt.

“Effective July 1, 2022, paid medical collection debt will no longer be included on consumer credit reports.” That is debt that is paid, so great, it shouldn’t be there any how.

“The time period before unpaid medical collection debt would appear on a credit report will be increased from 6 months to one year.” Yes, this will give you more time but if you can’t afford to pay the debt it will still eventually report to your credit, hurting your credit rating.

“In 2023 medical debt under $500 will no longer be reported.” While this is nice, most medical debt under $500 can we worked out in minimal payments, it is the large medical debt that is the problem and will still be an issue for most consumers.

Medical debts hurt your credit report and these changes will only bring minimal relief for the millions of consumers struggling to get loan approvals. Bankruptcy can often be an option to provide real relief. Chapter 7 Bankruptcy can wipe out the medical debt that may be negatively affecting your credit score.  Contact a Bankruptcy Lawyer at any of our offices, Altamonte Springs, Waterford Lakes, Winter Garden, Orlando, or St. Cloud for a consultation to see if, Chapter 7 Bankruptcy might be a good option for you.

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REAL ESTATE AGENTS – WHEN A CLIENT NEEDS PROBATE

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When a person passes away, you may find yourself in a situation where the deceased person (Decedent) owns a piece of property and the heirs of that person want to sell it. The heirs oftentimes hire an agent, list the property, get a contract, deposit escrow, schedule inspections, and then realize that the title company is requiring a probate as a B(I) Requirement on the Title Commitment. This is because the property is still in the name of the Decedent, and there has not been a legal devise out of the Estate. The title company needs to know who the owner of the property is as a prerequisite to closing the transaction because they need to know who can legally sign the closing documents.

In short, a requirement for Probate means that the Decedent’s assets and debts need to be located and accounted for, and any remainder needs to be distributed to the beneficiary(ies). Further, the exact beneficiaries need to be determined because it will depend on whether any Trusts/Wills/Enhanced Life Estate Deeds/Pre-Nuptial/Post-Nuptial Agreements or other Estate Planning documents are available for the Decedent, or whether the Decedent died “Intestate” (without a will). There are two main types of probate administration under Florida law that you will run into as a real estate agent: Formal Administration and Summary Administration.

FORMAL ADMINISTRATION

A Formal Administration is required when the assets of a deceased person are valued at $75,000.00 or more and the Decedent has been dead for less than two (2) years. Most clients will fall into this category because (1) the value of the property pushes them past the $75,000.00 threshold, and (2) the heirs want to sell the property within two years following the death of the Decedent. This is a “full” probate and could take more than six (6) months to complete. This is the most complex form of probate, and it will be the costliest. Clients will always ask how much a Probate is going to cost. To answer this, see Florida Statute § 733.6171(3):

“[C]ompensation for ordinary services of attorneys in a formal estate administration is presumed to be reasonable if based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during the administration as provided in the following schedule:

(a) One thousand five hundred dollars for estates having a value of $40,000 or less.

(b) An additional $750 for estates having a value of more than $40,000 and not exceeding $70,000.

(c) An additional $750 for estates having a value of more than $70,000 and not exceeding $100,000.

(d) For estates having a value in excess of $100,000, at the rate of 3 percent on the next $900,000.

(e) At the rate of 2.5 percent for all above $1 million and not exceeding $3 million.

(f) At the rate of 2 percent for all above $3 million and not exceeding $5 million.

(g) At the rate of 1.5 percent for all above $5 million and not exceeding $10 million.

(h) At the rate of 1 percent for all above $10 million.

SUMMARY ADMINISTRATION

Summary Administration is a second type of Probate in Florida. A Summary Administration is only available if the value of the estate is less than $75,000, OR if the Decedent has been dead for more than two years. This type of Probate is the most ideal type of Probate for a client as it is usually finished within three (3) to six (6) months and can be completed for around $2,500.00 or less, generally speaking.

AGENT PERSPECTIVE

The length of time a Probate takes is dependent on many factors, including but not limited to, the County, the Judge, whether the property is Homestead property or whether it is Investment property, whether the Decedent was married and/or had children, whether there are creditors to the estate, whether the creditors actually make a claim against the estate, and whether a Formal or Summary Administration was required.

If you are going to list a property, make sure you are checking who the owner is. If the owner is listed as “Estate of (name of Decedent),” or if you are dealing with an heir of the property instead of the owner, make sure you do your due diligence prior to accepting the listing for the sake of your own time. Oftentimes Seller(s) will walk away from a deal when they find out they have to probate the property, (even though the logical argument is that you are not coming out of pocket but rather it can be taken from the seller proceeds at closing). You want to minimize the amount of time you invest in the transaction by asking the title company to run your title search to see if they will call for a probate requirement BEFORE YOU SIGN THE EXCLUSIVE LISTING AGREEMENT. If you do not watch for this, eventually you will take a listing, pour dozens or hundreds of hours into it, then find out that it cannot close (or the seller simply will not close) due to Probate related issues.

Probates can be extremely frustrating because most of it is a “waiting game.” A client who is responsive to emails and has a good general understanding of technology and programs, such as DocuSign, will make your life a lot easier because they will be able to get any necessary documents to the law firm at a faster pace, thereby cutting down on the waiting time. Once a document is submitted to the Court, you are at the mercy of the Court’s schedule, so you will want to brace your client early that immediate answers or a way to “speed up the process” is usually not available. If your client actually begins the Probate process, communicate with them frequently to make sure that neither the attorney nor the Court is waiting on any documents from them, especially if they are not email friendly.

If you have any questions related to a Probate, give our office a call and let’s speak about the specific facts to see how we can help you close your deal!

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Five Types of Deeds to Transfer Property In Florida

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In Florida, a Deed is required to transfer ownership of a piece of property, regardless of whether that property consists of buildings or vacant land. Contrary to popular opinion, the title to the property is not conveyed by the Mortgage in Florida (the Mortgage creates a lien on the property).

What does a Deed specifically do?

In common law, a deed is any legal instrument in writing which passes, affirms, or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. As you may expect, what sounds like a simple transference can become overtly complicated. You may need the property to transfer in a specific way. That is why there are different types of deeds that can accomplish a variety of objectives.

What is the Difference Between a Deed and Title?

A deed is a physical document that conveys ownership of a property, while a title refers to the concept of ownership rights. One illustration people use to understand this concept is the idea of owning a book. You can own a physical copy of a book, but you cannot own a physical copy of the title. The title is a concept, whereas the book is something physical. In this way, a deed is a physical item that you must have after you purchase property.

Why are there multiple types?

The different types of deeds exist to account for what the grantor can convey, what the grantor wants to convey, and what warranties the grantor wants to be encompassed within. The types of deeds we see most often are the general warranty deed, the special warranty deed, the quitclaim deed, and the ladybird deed. Each of these deeds have a diverse range of conveyance, and depending on your objectives, you will want to narrow it down to the one that matches your goals.

There are five (5) main types of Deeds in Florida that will be addressed in this article: (1) Warranty Deed; (2) Special Warranty Deed; (3) Quitclaim Deed; (4) Life Estate Deed; and the (5) Enhanced Life Estate Deed (Lady Bird Deed). Each of these Deeds have different affects that come with each of these Deeds, and it is important to know when receiving a property what type of title you will be receiving.

  • Warranty Deed- Conveyance

A Warranty Deed provides a full warranty of title that extends all the way through the chain of title, including the period before the grantor/seller owned the property. The general Warranty Deed is the most common type of Deed to transfer residential property in Florida and is most likely the type of Deed that you will find at the closing table of a home purchase or sale. The general Warranty Deed is considered the top tier Deed for ownership of a property.

  • Special Warranty Deed- Conveyance

A Special Warranty Deed transfers limited warranty of title to the grantee. This particular type of Deed guarantees that there are no defects or problems with the title during the time period grantor’s/seller’s ownership but makes no promises about the condition of the title before the seller owned the property. Special Warranty Deeds are considered the mid-tier Deed for ownership, second to the Warranty Deed. In Florida, a Special Warranty Deed is most often used to transfer commercial properties, and while it is available in a residential transaction, it is uncommon. If you are being offered a Special Warranty Deed from a residential seller, inquire as to why they are unwilling to convey a Warranty Deed.

  • Quitclaim Deed- Conveyance

A Quitclaim Deed passes the ownership interest in real estate to the new owner but makes no warranties regarding any defects or problems with the title. A Quitclaim Deed is the least desirable Deed to accept ownership of a property in Florida. The Quit Claim Deed is comparable to a used car dealership offering a used car, “as-is.” Once you drive it off the lot, or in this case, once you accept the Deed, you are stuck with any issues the property may have. In Florida, Quitclaim Deeds are often used to transfer property between family members, an individual to an LLC, an individual to a trust, or spouses in a divorce, among other reasons. Quitclaim Deeds often create exceptions to title policies, and are a tool used by owners to get rid of properties that may not otherwise qualify for conventional financing or title insurance. If you are not an expert at identifying risks and liabilities in the property’s chain of title, you should be very careful purchasing a property via Quit Claim Deed.

  • Life Estate Deed- Estate Planning

A Life Estate Deed is a grant of an ownership interest in a property, whereby the Grantor gives away true legal title and ownership to another person, while retaining the ability to use the property for the rest of their lifetime. At the execution and deliverance of this type of Deed, the Grantee becomes the fee simple remainderman, and the Grantor becomes a life tenant in the property. A house that is Deeded away via a Life Estate Deed bypasses the probate process and passes to the remainderman in fee simple at the death of the life tenant. Life Estate Deeds create a life estate in the person who granted the Deed and said life tenant is bound by the decisions of the remainderman as to whether they can sell, convey, or encumber the property. What this means is that if you grant your children a Life Estate Deed, and you live for another five years, for that five-year period you are no longer entirely in control of your property, nor would you be entitled to any of the money if you sold the property. You have a life interest, meaning you can stay there for your life but effectively the children would be the owner of the property and any decisions concerning the property would have to be approved by them.

  • Enhanced Life Estate Deed- Estate Planning

Also known as a Lady Bird Deed, an Enhanced Life Estate Deed is a special form of Deed that allows an owner to Deed the property to the beneficiary(ies) of their choice, but the Deed does not become effective until the death of the Grantor. This type of Deed is only available in a handful of states, and Florida is one of them. This allows the Grantor to revoke the Deed before their death, create a new Deed, sell the property, take out a mortgage, or any other activities conveying or encumbering title to the property, whereas a traditional life estate requires the Grantor to get consent from the Remainderman. This is a Deed used in estate planning where the owner wants to retain the ability to change their mind and this type of Deed allows the property to pass to the beneficiaries at the time of death of the Grantor, bypassing the probate process in Florida. This Deed is almost always recommended when a parent is looking to add their child to a deed “just in case something happens.”

Does a Mortgage Convey Title?

This is a point of confusion that we often see. A mortgage does not convey title. For that, you will need a deed. The reason we like to make the distinction is because many times, individuals might think that a mortgage does convey title, but it does not. A mortgage is a loan on the property itself, and it is the deed that will convey title and ownership of the property. They are separate entities with interlocking components, and believe it or not, there are absolutely different types of mortgages. The best way to look at it: a mortgage is not a deed, and a deed is not a mortgage.

Conclusion

There are quite a few different types of Deeds in Florida, and this article is certainly not an exhaustive list. The Deed that is right for you will depend heavily on the specific facts of your situation. Reach out to us today if you would like to discuss which type of Deed you are looking for!

The attorneys at The Orlando Law Group represent property owners, prospective property owners, developers, contractors, lenders, investors, real estate agents, brokers, landlords, tenants and more throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are dealing with a real estate issue or looking for some preventative real estate legal services, please reach out to our office at 407-512-4394, fill out our online contact form.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

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The At-Will Doctrine: What Does It Mean to Be an At-Will Employee or Employer?

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The at-will Doctrine is a longstanding principle in the American labor market which, in basic form, states that an employer can decide “at-will” to terminate an employee for any reason and at any time, without the need for providing just cause for the termination.

There is currently no statute written by elected lawmakers establishing the at-will doctrine as legal fact; rather it is based in the common law, which is the body of law based on the judicial decisions of legal precedent established by the courts. The at-will doctrine came into precedence in the United States during the late 19th and early 20th centuries, when the economic policy termed by the French phrase as “laissez-faire” or “hands-off,” meaning minimal interference by the government in the economic affairs of the state and individuals, became popular in rapidly industrializing American business and political models. Every state in the United States, with the exception of Montana, is an at-will state, and the majority of employees (with some exceptions such as those employed by contract or government employees) are at-will employees.

While this doctrine is typically cited as a net negative for the employee side of the labor market, it does go both ways-employees, in turn are also given the right to terminate their own employment “at-will,” at any time, without giving a reason, and without fear of legal retaliation by an employer. Additionally, because employers are aware that you can leave at any time, there is theoretically an inherent incentive for them to treat you well and provide opportunities for growth. Compare an at-will employee who can quit at any time to an employee contracted to work for two years-knowing that the contract employee will only stay to work for two years and then leave, there is little incentive for the employer to offer opportunities to advance within the workplace. Furthermore, as not all employees are guaranteed to stay at their place of work permanently, employees can negotiate preferable terms of employment, such as higher pay and benefits, especially during times when the market favors employees (as it does currently).

On the other hand, employees arguably have more to lose under the at-will doctrine than employers do, as their employment can be terminated at any time while an employer can simply hire a new employee. As many Americans are unfortunately aware, it can be far more difficult to get a new job than it is to hire a new employee, especially during an economic recession or difficult time. Losing one’s job means losing one’s ability to provide for themselves and their loved ones, and the idea that one’s job is never completely secure is a frightening and stressful prospect.

It is important you know your rights as an employee, especially in relation to your job security. When you start a new job, you should be given some sort of written information as a new hire detailing the policies and procedures relating to the terms and conditions of your employment, typically in the form of an employee handbook, contract, or manual. Make sure to read the information provided to you very carefully and ask questions if needed. You should know based on this information whether you are considering an at-will employee or otherwise. A good employer should not be opposed to their employees’ asking questions in good faith about their employee rights-and if an employer is strongly opposed to answering any kind of concern raised about their employment, it could be an indication that they are not a trustworthy employer with their employee’s rights in mind.

Here is a quick tip to ensuring that you are as prepared as you can be for any changes in your employment-always assume you are an at-will employee unless you know with absolute certainty that you are not (such as if you are an employee contracted to work for a company for two years based on written contract). For instance, we could examine the facts of the 1983 case decided by the District Court of Appeal of Florida in the Second District, Muller v. Stromberg Carlson Corp., 427 So. 2d 266 (Fla. Dist. Ct. App. 1983). The employee, Muller argued that his previous employer, Stromberg Carlson Corporation had breached employment contract by, among other items, terminating his employment without cause in 1981. Muller alleged that he was told by Stromberg that he would become a “permanent” employee after a six-month probationary period and would remain an employee as long as his performance reviews were satisfactory, which Muller’s apparently were. However, the Court ruled against Muller in their opinion, stating that “We see no justification to depart from long established principles that an employment contract requires definiteness and certainty in its terms.” Muller’s employment arrangement included no specific terms relating to tenure or job security; thus as he was not employed for a definite, certain term, he was considered an at-will employee and thus could not argue that he was entitled to legal or financial compensation based on breach of contract by the employer. Unless you are completely sure based on written agreement that you are not an at-will employee, know that you are most likely an at-will employee and can thus be terminated at any time without cause.

Your status as an at-will employee does not mean that you are completely unable to explore the chance for legal remedies if you feel you have been wrongfully terminated. There are numerous exceptions to the at-will doctrine for which you may be able to seek legal resolution for wrongful termination. These may include discrimination by an employer under Title VII of the Civil Rights Act of 1964, violation of public interest (such as one being fired for refusing to perform an illegal act), termination after taking leave under the Family Medical Leave Act, for active military duty or for jury duty, and termination in retaliation against you (such as after reporting sexual harassment in the workplace). If you feel that you have been wrongfully terminated and are seeking possible legal recourse, we would be happy to consult with you to discuss your options. Please contact our office via phone at 407-512-4394 to schedule a consultation with an attorney.

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Clarifying What a Deed Is

Clarifying What A Deed Is – Four Types and Uses

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At The Orlando Law Group, many times, we focus in on the questions we most frequently encounter. Much of what we do is intricate, such as the transferring of property through the use of a deed. In the world of Real Estate Law, many words like deed, title, and mortgage get used without an understanding of their distinctions. In this blog, we will offer you insight into the different ways we utilize deeds to transfer properties and address some confusions on what a deed is and what it can and cannot do.

What does a Deed specifically do?

In common law, a deed is any legal instrument in writing which passes, affirms, or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. As you may expect, what sounds like a simple transference can become overtly complicated. You may need the property to transfer in a specific way. That is why there are different types of deeds that can accomplish a variety of objectives.

What is the Difference Between a Deed and Title?

A deed is a physical document that conveys ownership of a property, while a title refers to the concept of ownership rights. One illustration people use to understand this concept is the idea of owning a book. You can own a physical copy of a book, but you cannot own a physical copy of the title. The title is a concept, whereas the book is something physical. In this way, a deed is a physical item that you must have after you purchase property.  

Why are there multiple types?

The different types of deeds exist to account for what the grantor can convey, what the grantor wants to convey, and what warranties the grantor wants to be encompassed within. The four types of deeds we see most often are the general warranty deed, the special warranty deed, the quitclaim deed, and the ladybird deed. Each of these deeds have a diverse range of conveyance, and depending on your objectives, you will want to narrow it down to the one that matches your goals.

What is a General Warranty Deed?

This is most likely the type you are looking for. It gives the most protection to the buyer, as well as guarantees that the property is owned outright by the seller. Although the exact specification can change depending on the state, the general warranty deed promises that the grantor has a legal right to sell the property, alongside the fact that the property is free of any liens, debts, or encumbrances.

What is a Special Warranty Deed?

A special warranty deed does not provide as much protection as the general warranty deed does. In this situation, the grantor of the deed conveys the property as well as two warranties, or assurances. The first warranty promises that the grantor holds title to the property, and the other assures that the property was not encumbered during the grantor’s time of ownership.

It is very important to note that this type does not guarantee that the property was unencumbered before the grantor took ownership. It makes sense that these are commonly used when the seller does not know what transpired before they took ownership of the property and are mostly encountered when a trust or estate is transferring property. You can also find it is common to have special warranty deeds when working with commercial properties.

What is the Quitclaim Deed?

With the quitclaim deed, the least amount of protection is afforded for the buyer. With limited uses, this deed transfers any interests the grantor may have in the property. For example, if your friend used a quitclaim deed to transfer their property to you, this deed would essentially say that “If I own this property, it is yours.” The grantor quits their right and claim to the property. It is also important to note that this type does not allow for any insurances in terms of liens and encumbrances. It is very often used in divorce because in that situation, both parties have a mutual understanding of the property’s history.

What is the Ladybird Deed?

The Ladybird Deed is used to pass property automatically to one or more recipients at death without the need for Florida probate. Many times, a Lady Bird Deed is also called an Enhanced Life Estate Deed. An important aspect of The Ladybird Deed is that the grantor reserves the right to sell, use, and manage the property during the grantor’s lifetime.

For a normal life estate deed, a five-year waiting period for Medicaid benefits would begin. One of the benefits of using a Lady Bird Deed is that this waiting period can be circumvented since the deed is not considered a transfer of ownership as a gift. One aspect to be careful of is the fact that some lenders will not let you refinance a property that has an enhanced life estate deed. That’s why it’s a good idea to check with us before you utilize one.

Does a Mortgage Convey Title?

This is a point of confusion that we often see. A mortgage does not convey title. For that, you will need a deed. The reason we like to make the distinction is because many times, individuals might think that a mortgage does convey title, but it does not. A mortgage is a loan on the property itself, and it is the deed that will convey title and ownership of the property. They are separate entities with interlocking components, and believe it or not, there are absolutely different types of mortgages. The best way to look at it: a mortgage is not a deed and a deed is not a mortgage.

Using the Right One

The ultimate point is this – each deed has its own specific uses, and picking the right one can have benefits for you in the long run. Therefore, you need to work with attorneys who have experience with their various uses, as well as how to make them work to your advantage. If you need a transference of your deed, make sure to give us a call and we’ll help you pick the one that best serves your goals, whether that is a general, special, quitclaim, or ladybird deed. Each is a tool for a certain time, objective, and purpose. Reach out to us, and The Orlando Law Group would be happy to help you pick the deed that best fits your need.

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Filing a Personal Injury Claim – What You Need to Know

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Did you know?

You might be surprised to find that, every year, 1.3 million people die from car accidents and approximately 25 million are injured. You may be driving safely, but it is others, who are distracted or drunk that are putting you and your loved ones at risk. If you have been involved in a car accident, the best thing to do is speak with a lawyer. Most lawyer’s consultations are free and it is important to know what your options are and what you should do next.

Many people try to handle the settlement on their own, but is that the right choice?

How do you know when you need the help of an attorney after a car accident?

Filing a Claim

You may need to file a claim with the at fault driver’s insurance. The insurance company may also want a recorded statement. This can be overwhelming if this is the first time you have had to handle this. You may also be injured and need to focus on healing.  An experienced lawyer will have substantial experience dealing with insurance companies.  Additionally, having an accident attorney handling the claim may help insurance companies take you more seriously and they may be more open to settlement if a lawsuit seems imminent.

Settlement

If an insurance company offers you a sum to settle your claim, you should not agree to settle and should not sign any agreements without consulting a lawyer first. Insurance companies often offer money right away and this a well-known tactic to prevent substantial claims from being filed.

Organizing a comprehensive settlement demand can be overwhelming especially if you are injured.  A car accident attorney is well versed in putting together a demand that clearly lays out your injuries and requested compensation. 

Medical Bills and Liens

Understanding the complex interactions between your car and health insurances as well as your PIP insurance is frustrating. Many people do not understand that you must pay back your health insurance as well as any providers who weren’t fully compensated out of the settlement money you receive. An experienced attorney can help you navigate this and may even be able to get reductions on some of your medical bills. It’s important to remember that insurance companies are not on your side, they are there to protect their insured and their bottom line.

When trying to recover money for injuries, you’re up against the insurance company, not the at-fault driver, be informed before you make common mistakes.  Many people can be taken advantage without the knowledge of a car accident attorney. Additionally, you may miss medical bills and liens if you don’t know what to look for.  

The Ultimate Point

We won’t pretend like Orlando isn’t a busy location. Living so close to a major city, the unfortunate truth is that you can count on a car accident happening. The good news is that, if it does, you have a legal team that has been here for over ten years, working to make personal injury cases right and those injured whole again. If you have been in a car accident, call an attorney that offers a free consult and will spend them time listening to your case.

Photo of Sophia Dean - Attorney at The Orlando Law Group
By: Sophia Dean
Personal Injury Lawyer

A small-town girl from Ohio, Sophia Dean has become a legal powerhouse, armed with 9 years of legal experience, a unique skill set for delivering justice, and an unwavering dedication to her clients. Attorney Dean is eager to fight for the outcome you rightfully deserve.

She spent a bulk of her legal career in the world of bankruptcy, student loan law, and debt settlement, assisting many people in taking the first steps towards financial freedom. Branching out into the field of personal injury further extends her servant’s heart to help those impacted by someone else’s negligence.

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Divorce Does Not Have To Be Difficult

Divorce – Diving Deep and Answering Your Questions

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Change is inevitable. Things comes together, and many times, very naturally, things come apart. This is not to say that change is not complicated, and we all know that those processes can be as intricate and arduous as we see fit. Many times, it is about beginning with the right perspective, and regarding divorce, the way you begin can truly set the tone for the journey ahead.

That is why it is crucial to consult with someone who has experience helping others make divorce work for their life. Marsha Summersill has spent years helping others through the journey, and in this blog, we will take a deep dive into the most asked questions regarding divorce, and how being creative plays a role in the process.

When going through a divorce, what would you say is the top concern for your clients?

It is equally money and kids. If they have minor children that usually would be the big topic of how they are going to work that out. Obviously, if they can work out something ahead of time that is good, but if there is a dispute it can get a little dicey. The finances are comingled with the responsibility of the kids, so they come together in certain aspects. The equitable distribution of the divorce, of the financial piece, might or might not be considered income and can become enmeshed with balancing factors within the divorce. You need to be sure this is the direction you want to go.

What are some determining factors to take into consideration when beginning the divorce process?

Each state has its own laws, and we exist in our own pocket of laws when it comes to divorce. I would say what to consider is exactly how your stuff is going to be split. Really consider the best interests of your kids. If they are elite athletes or a super scholar, really put their needs first with respect to their activities and life. Be flexible and maintain the objective of communicating well throughout the process.

What does the timeline look like for someone filing for divorce?

If you truly do not need to litigate all your issues, then it potentially could take a handful of months. If there are many items to litigate, then it could take years. The more the parties know that is real and legally sound, the faster they will get to a realistic compromise. I think the issue we encounter as family law attorneys, many times, is the friend that wants to chirp in their ear or even the information google gives them. That sends them down an illogical path that does them no favors.

Other determining factors will be the party’s cooperation, compromise, and realistic views on how to get the sorting solved, and then other times it could be their legal counsel. There absolutely has been times when the opposing attorney continued the battle, even when both parties could have solved the situation and walked away.

What are some factors that could prohibit me from retaining rights to my children after the divorce?

You always have rights to your children. The only agency outside of you signing over your rights is the Department of Children and Families. In the state of Florida our public policy is both parents have equal rights to enjoy raising their kids. The judge has about 25 factors that they can consider. They do not have to consider all of them, but what is important to understand is that those factors are common sense stuff. There is no one-size-fits-all approach, and many times I have clients that get super creative. Sometimes they have jobs where they travel, so the family must maximize and divide their time. When thinking about the child first, a two-year-old does not need to go seven consecutive days without seeing their parent.

To establish that bond, it is important that the child spend time with both parents. For older kids, they usually do not like going back and forth. Dicing up a week for a high schooler can be tough, so that is a situation where we may want to divide time differently depending on the needs of the children. Even though you are getting a divorce, you still must be a team when it comes to how you parent. It serves as a great example to other individuals who want to waste time and energy battling each other.

Let us say that I started a business while we were married, and it became successful. Is my spouse entitled to any of that business?

Probably. There are so many factors that we must consider, but the reality is that spouse is going to get something. I had a case where this person worked and worked and grew their business to a highly successful endeavor. The offset of that is really determining what is the marital portion of the business. That is where the fighting can start. The definition of what is marital and what is non-marital, what’s personal good will and what’s enterprise good will can really determine the outcome. Once we discover the amount of money that is the business and then the value that you bring to that business, we can achieve that number but, of course, every business is specifically different.

My recommendation: marry your equal. Then, if they did not earn it, they will not want it. That will simply be their personality type, but of course sometimes it is a complicated, intricate scenario. That is why a prenup can be a completely fair thing. If you do something together, that can become marital property. A prenup does not state that, “You don’t get anything.” What a prenup does say is, “I don’t want to be punished for working hard and achieving a lot of things.” There should be no issue with signing it because it is just being fair.

What about social security benefits? Is there a way I can take advantage of their Social Security benefits if they have always earned a greater amount of money?

Yes. The common law knowledge we operate under is that, if your marriage is ten plus years and the one spouse is not remarried at the time that they decide to select social security and their social security is less than what their spouse’s was, then they will either be able to offset it or get one that is a little bit higher than it would be on their own.

How does mediation play a role in the divorce process?

Mediation honestly saves so much financially, emotionally, and in many other areas. It is a huge benefit. In our location, it is required. Not in all statutes, but in family law, it is. You cannot even go to court without mediating. The question is, “Do you have a qualified mediator working with you?” It is a task to get certified in areas, but it does not take any specialization, so if you are looking at a divorce, post-divorce, or paternity case, it is best to work with someone who has good experience or someone like me, who is a family attorney.

What if I want to move to another state with the kids after the divorce?

No. This is about getting your mindset right from the very beginning. We do have a relocation statute that is automatically the law. If you get a divorce and decide to move later, the best option is that you and the other parent get to an agreement to see if that is something that will work for the kids. It cannot be, “I want to move to live closer to someone I met on the internet,” which has happened before.

 Moving is a tough one because it must be looked at from the child’s best interest. That is how the court looks at it and that is how the law looks at it. If the parents can get to an agreement and have a long-distance parenting plan, then we file with the court. If one parent says no, then you will be required to litigate that. How our law works to calculate maximum distance is – 50 miles as the crow flies. If you go over 50 miles, then you have opened the relocation statute. This is all why it works best when both parties can retain a cordial relationship with each other. Odds are that you will indeed have to work with that person in the future to handle these scenarios. It is all about compromise for both parties involved, and always about what is best for the children.

What are some determining factors when it comes to who will pay child support – and what does that support entail?

That is written in the law. It is how much money your gross income is, accounting for all your deductions, taxes and insurance, mandatory pension, and unions. You do get those credits and deductions. It is important to clarify that you do not get credits and deductions to account for your spending habits. The way time-sharing factors in is that it cost money to take care of kids. Timesharing is based on income incorporated with the amount of overnights, plus the proper credit for child expenses. If the child goes to an expensive school, and they are paying 100% of it, they need some sort of credit for that.

Define equitable distribution and how does it play a role in the outcome of the divorce?

It is huge. A lot of people jump to marital assets, but you also have marital debt. All of that is incorporated, and we do a specified spreadsheet. In cases where I am dealing with a lot of assets and/or a lot of debt, I am going to get the one-sheet, and we go back and forth until there is an agreement. We look at a number that aims at equalizing or offsetting payment or equalizing or offsetting debt.

What determines marital property?

Many times, those are the big items that we will argue over. If you acquire anything during the marriage, then there is a high likelihood that it is going to be considered marital and will be subject to an equal split. There is pre-marital, meaning you had a house before you were married. There is this belief that if you do not put your spouse’s name on the house, then it is not marital. This is not necessarily the case. The equity you have in the house at the date of marriage is yours, but as you make improvements over time, the house becomes marital. Whether or not your spouse’s name is on it is irrelevant, so that is something we would caution someone on.

Inheritance is another item people need to be careful about. Inheritance is technically non-marital until it is deposited into an account that is sharable. You cannot comingle the money or use it for marital needs if you want it protected. If you need to take a portion out, take it out at the time that you receive the inheritance, but make sure to put the rest into an account where it is clearly not being used for marital purposes.

How can a CPA (Certified Public Accountant) be of benefit during the process?

CPAs are highly valuable – I work with two that are amazing. Obviously, as lawyers, we have limits. CPAs know so much about values, stocks, and constructing an in-depth chart that considers all the angles of value for a certain item or category. The CPAs we work with are usually forensic accountants, and they know how to calculate enterprise and personal good will on a high level. I get my spreadsheet, opposing counsel gets their spreadsheet, and we compare to see how close we can get to meeting in the middle. When you find a good CPA, they are literally such a valuable piece of the puzzle.

If someone is thinking about divorce right now, what would you want to be able to tell them?

If you have the resources, always seek therapeutic guidance. Sometimes religion plays a role in helping you be certain, but the point is to find resources to make sure that you feel very secure in the decision you are making, especially if you decide to pursue a divorce. When I do my consults, we talk and make sure that you are confident in the decision that is being made and gain that acceptance before the process begins. That can truly help.

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Clarifying What a Deed Is

Clarifying What A Deed Is – Four Types and Uses

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At The Orlando Law Group, many times, we focus in on the questions we most frequently encounter. Much of what we do is intricate, such as the transferring of property through the use of a deed. In the world of Real Estate Law, many words like deed, title, and mortgage get used without an understanding of their distinctions. In this blog, we will offer you insight into the different ways we utilize deeds to transfer properties and address some confusions on what a deed is and what it can and cannot do.

What does a Deed specifically do?

In common law, a deed is any legal instrument in writing which passes, affirms, or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. As you may expect, what sounds like a simple transference can become overtly complicated. You may need the property to transfer in a specific way. That is why there are different types of deeds that can accomplish a variety of objectives.

What is the Difference Between a Deed and Title?

A deed is a physical document that conveys ownership of a property, while a title refers to the concept of ownership rights. One illustration people use to understand this concept is the idea of owning a book. You can own a physical copy of a book, but you cannot own a physical copy of the title. The title is a concept, whereas the book is something physical. In this way, a deed is a physical item that you must have after you purchase property.  

Why are there multiple types?

The different types of deeds exist to account for what the grantor can convey, what the grantor wants to convey, and what warranties the grantor wants to be encompassed within. The four types of deeds we see most often are the general warranty deed, the special warranty deed, the quitclaim deed, and the ladybird deed. Each of these deeds have a diverse range of conveyance, and depending on your objectives, you will want to narrow it down to the one that matches your goals.

What is a General Warranty Deed?

This is most likely the type you are looking for. It gives the most protection to the buyer, as well as guarantees that the property is owned outright by the seller. Although the exact specification can change depending on the state, the general warranty deed promises that the grantor has a legal right to sell the property, alongside the fact that the property is free of any liens, debts, or encumbrances.

What is a Special Warranty Deed?

A special warranty deed does not provide as much protection as the general warranty deed does. In this situation, the grantor of the deed conveys the property as well as two warranties, or assurances. The first warranty promises that the grantor holds title to the property, and the other assures that the property was not encumbered during the grantor’s time of ownership.

It is very important to note that this type does not guarantee that the property was unencumbered before the grantor took ownership. It makes sense that these are commonly used when the seller does not know what transpired before they took ownership of the property and are mostly encountered when a trust or estate is transferring property. You can also find it is common to have special warranty deeds when working with commercial properties.

What is the Quitclaim Deed?

With the quitclaim deed, the least amount of protection is afforded for the buyer. With limited uses, this deed transfers any interests the grantor may have in the property. For example, if your friend used a quitclaim deed to transfer their property to you, this deed would essentially say that “If I own this property, it is yours.” The grantor quits their right and claim to the property. It is also important to note that this type does not allow for any insurances in terms of liens and encumbrances. It is very often used in divorce because in that situation, both parties have a mutual understanding of the property’s history.

What is the Ladybird Deed?

The Ladybird Deed is used to pass property automatically to one or more recipients at death without the need for Florida probate. Many times, a Lady Bird Deed is also called an Enhanced Life Estate Deed. An important aspect of The Ladybird Deed is that the grantor reserves the right to sell, use, and manage the property during the grantor’s lifetime.

For a normal life estate deed, a five-year waiting period for Medicaid benefits would begin. One of the benefits of using a Lady Bird Deed is that this waiting period can be circumvented since the deed is not considered a transfer of ownership as a gift. One aspect to be careful of is the fact that some lenders will not let you refinance a property that has an enhanced life estate deed. That’s why it’s a good idea to check with us before you utilize one.

Does a Mortgage Convey Title?

This is a point of confusion that we often see. A mortgage does not convey title. For that, you will need a deed. The reason we like to make the distinction is because many times, individuals might think that a mortgage does convey title, but it does not. A mortgage is a loan on the property itself, and it is the deed that will convey title and ownership of the property. They are separate entities with interlocking components, and believe it or not, there are absolutely different types of mortgages. The best way to look at it: a mortgage is not a deed and a deed is not a mortgage.

Using the Right One

The ultimate point is this – each deed has its own specific uses, and picking the right one can have benefits for you in the long run. Therefore, you need to work with attorneys who have experience with their various uses, as well as how to make them work to your advantage. If you need a transference of your deed, make sure to give us a call and we’ll help you pick the one that best serves your goals, whether that is a general, special, quitclaim, or ladybird deed. Each is a tool for a certain time, objective, and purpose. Reach out to us, and The Orlando Law Group would be happy to help you pick the deed that best fits your need.

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Lemon Law

The Lemon Law – Your Comprehensive Guide

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Making Laws Out of Lemons

You cannot make lemonade without lemons, and you cannot be protected as a consumer without The Lemon Law. The Lemon Law is not that old. States began to enact their own lemon laws after the federal government first enacted the Song-Beverly Consumer Warranty Act in 1970. As it pertains to automobiles, the Lemon Law was put into place to allow for some semblance of accountability between consumers, manufacturers, and the products they produce. In this blog, we will take a comprehensive look into how the lemon law protects you as a consumer, best practices if you are involved in a lawsuit where the lemon law is applicable, and everything you need to know about why it exists in the first place.

What Qualifies As a “Lemon”?

On a simple level, the word lemon refers to a vehicle that has not been fixed after a certain period and cannot be fixed and made to work for the consumer. It is a defective item. If you’re vehicle has issues and has been at the dealership for more than 15 days you may have a Florida State lemon law case. The rights to utilize this law do not last forever though. For the first 25 months after the date you take delivery of your motor vehicle, that’s how long we have to act. If you wait, odds are you will end up outside of that time window, and we will be powerless to defend you. If you think your vehicle qualifies as a lemon, and you want to take action, our attorneys will fight for your right to have a working, non-defective product.

How The Lemon Law Protects the Consumer

As you may expect, not all products sold are in perfect, working order. This is why you as a consumer need protection. Lemon Laws work to ensure the consumer has the authority to request that any defects in the automobile they purchased be repaired in a reasonable amount of time. Some documents that the consumer will receive are a “Notice of Arbitration,” a “Consumer’s Trade-in Allowance Form,” and a “Consumer’s Prehearing Information Sheet.” These forms need to be completed and sent to the Board Administrator as well as a copy to be received by each involved manufacturer or manufacturer’s attorney no later than 5 days before the scheduled hearing. It is very important these documents are submitted or the board may not allow your witnesses to testify or may decline to consider any attachments, unless good cause is given as to why there was a failure to comply. 

How The Lemon Law Protects the Manufacturer

Manufacturers need consumers to be able to trust them, and without Lemon Laws, the consumer would not feel empowered to purchase their product. The law understands that not every car is perfect, but it does exist to hold those accountable to the products they sell. The manufacturer should receive a copy of the consumer’s Request for Arbitration as well as any accompanying documents, a “Notice of Arbitration,” a “Manufacturer’s Answer” form and a “Manufacturer’s Prehearing Information Sheet.”

Best Practices for Your Hearing

If you must file for litigation, we want you to have an idea about what to expect. Your hearing will be conducted by a panel of three arbitrators. One of the arbitrators will serve as the chairperson and the other will have a deep knowledge of motor vehicles. All hearings are open to the public, and intimidation or disruptive behavior is not allowed by either party. The process will be broken down into two parts. Part one aims to determine if the vehicle does qualify as being a “lemon” according to the law. If the vehicle is indeed found to be a lemon, the second part of the hearing will determine if the consumer gets a refund or a replacement vehicle to compensate for their damages. Our recommendation is to always arrive ready to testify about all the important aspects of your case, as well as an understanding of the guidelines for calculating the remedy. Those guidelines can be found at http://myfloridalegal.com/lemonlaw.

Changes to the Process Because of COVID-19

Due to the changes brought about by COVID-19 and new procedures to increase productivity at a distance, documents and other evidence will need to be submitted to the Board by close of business Tuesday, the week prior to the hearing for the Board to review those documents. It is also important to note that each participant is required to appear with both video and audio during the zoom hearing.

It may seem simple, but certain practices on zoom are assumed. For instance, when not speaking, it is a good practice to mute your microphone. Each party will receive remedy calculation worksheets via email, which should be printed out and available by the time of the hearing. If you get disconnected at any time, try to reconnect immediately and if you are unable to reconnect, call the Board Secretary so that your hearing can be paused while the problem is solved.

What Our Attorneys Can Do to Help

As you can see, there are a multitude of points to consider for your hearing, so much so that we cannot include them all in one blog. Our recommendation is to never struggle alone. Our attorneys have experience in these matters, and can help guide you and reassure you throughout the process. It’s our job to offer you quality advice given our vast legal experience. We have your best interests in mind, and will help you gather all of the information necessary to make sure your case has the best chance once the board considers all of the data presented.

If you have questions, reach out to The Orlando Law Group right away, and we can help remove the burden that comes from buying a lemon.

 

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Sophia Dean

Why Waiting to File for Bankruptcy Could Cost You

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Bankruptcy is a bad word, but it doesn’t have to be, and it shouldn’t scare us. We at The Orlando Law Group believe in breaking the bad connotations these words grow into by giving you an informed outlook, as well as the information that no one talks about. Sophia Dean has a vast wealth of experience when it comes to bankruptcy, and we wanted to ask her some of the questions we commonly receive regarding the matter.

Why do you think that people wait to file bankruptcy?

There’s a couple of reasons that might be causing someone to wait. I think people tend to avoid their problems. It is a lot of paperwork so some people might be dreading that aspect of filing. Usually, I imagine it is a multitude of things, such as having money coming in that the client does not want to lose. One example I can give is that of the stimulus checks. People keep putting off filing because they keep receiving their stimulus checks. It creates an environment where one might be thinking, “There will be a stimulus check or tax refund around the corner that I don’t want to forfeit.” Through bankruptcy, you can only protect certain amounts of money. This includes $1,000 personal property as well as your home, if you own it. If you do not own a home you get a wild card, which protects $4,000 of personal property. Waiting for any reason could potentially mean that you fall outside of the financial bracket needed to file bankruptcy, and that’s why you need to file at the time when you talk to the attorney, if the time is right.

What are some factors that quality for the time being right?

The first thing we will figure out is if you do qualify for bankruptcy. For example, let us say you have a job where you are making under the threshold, and you qualify for a Chapter 7 Bankruptcy. Step two is, you have debts you cannot pay. You may not be in default yet, but you are struggling to pay your debt, and you are living paycheck to paycheck. The main two factors are your income and your debt. Let us say suddenly you get a raise, and that affects your income. That could potentially put you out of the range for qualifying for bankruptcy. There is a very small window for you to file, and that is why it is so important to commit to the decision if both factors indicate so. When considering criteria, there is a window of six months where we will look back to see what has happened to your income. If you wait to file and something happens to affect that income, you could potentially be exempt from declaring bankruptcy and clearing your debt.

Then on the debt side, your case could go to a debt collector quickly. You can file bankruptcy, but they will still be garnishing your wages. For example, let us say you meet with us to file for bankruptcy, but for whichever reason you do not follow through and times goes by. One day, you could potentially wake up, and all your money could be withdrawn from your bank account because the courts had filed a judgement and garnished your bank account entirely. These are the repercussions of waiting to file for bankruptcy. What we try to help our clients understand is that, at some point, if you do not pay your debts it will result in bank account garnishment. We have no way of knowing when that time will be, but we cannot depend on it happening eventually. We need to act like it is going to happen right now because it could.

How Does Bankruptcy Protect Me?

A lot of people try to continue to pay their debts, and then they come back later and try to file. This does not help because, many times, they do not qualify at that point for bankruptcy, whereas they could have before. Bankruptcy acts as a forcefield, and it is not only a way to wipe clean your debt, but it’s also a way to protect your assets. Filing could be the singular act that stops you from losing money and possessions in the long run.

Why Researching Online Can Mislead You

We spoke to a client who had been doing their own research on google. They moved here from another state and were under the impression that they could not file bankruptcy in Florida for two years. That is wrong, but that is the answer they found on the internet. If you have just moved here, you must be here for 91 days to file in the state. The exemptions, which can all be sorted out with an attorney, is where that client was seeing information about waiting for two years. That has nothing to do with you being able to file for bankruptcy, and because of a misinterpretation of information, they did not qualify for a Chapter 7 because they got a raise in the interim. If they he called me two months earlier, they would have qualified. Therefore, acting immediately can be in your best interest, and why doing your own google research can be misleading.

When I File for Bankruptcy, Are All My Debts Wiped Clean?

Not all debts, but most of them. Exceptions include student loans as well as certain types of tax debt, and certain types of criminal debt. Credit card debt, medical debt, loan debts are all wiped clean. Even mortgage debt is wiped clean, and if you do not want to pay that debt, you do not have to. You will not be able to keep the house, of course, but it will allow you to hit a reset button on your bills. Bankruptcy is a tool that is used to help people who have fallen victim to a circumstantial debt through no fault of their own, and it’s there to help you get back above water.

Should You File Bankruptcy Before You Get A New Job?

Yes. If you are considering bankruptcy, an increase in wages could potentially push you outside of the qualification for filing. We see this many times because there is not enough information educating individuals. Not only that, but you do not want to have to try and stall you getting hired because you are trying to qualify. The best practice would be to go ahead and file, and then begin your job search. Your income level will determine which type of bankruptcy you qualify for, so it is very important that you talk with one of our attorneys before any major changes happen that could affect your income/debt ratio.

Can I File For Bankruptcy If I Am On Unemployment?

One of the questions we get a lot is if you can file bankruptcy if you are on unemployment, and the answer to that is yes, you can. Unemployment does not affect anything regarding filing for bankruptcy. If you are receiving unemployment and you expect to start a job soon, now is the time to give us a call.

Another life change that can alter your ability to file is a change in marital status. Let us say you are getting married, but both of you have debt and want to file for bankruptcy. If you wait and try to file after you are married, then you are counted as having a joint income. This could prohibit your ability to file for bankruptcy and stand in the way of your wiping clean your debt. It may seem obvious, but we have seen situations like this, and because there is not enough education on bankruptcy as a tool, facts like these get overlooked or perhaps are not even considered in the first place.

Can I File Twice?

Whether you can file for bankruptcy does depend on if you have filed before and when that took place. There is an eight-year filing period between two Chapter 7 Bankruptcies. The best practice you can have is to treat this like a one-time situation, even though we have known clients that were looking to file twice. In that situation, unfortunately they would have to wait, but the good news is that, by having the discussion, we can plan in the coming years and work hard to prepare.

In Conclusion

The cost of waiting to file is so much higher than the cost of filing for bankruptcy. Attorney’s fees are small in comparison to the fact that your debts, which you are struggling to pay at the time and may never conquer, could potentially be wiped away. My initial consultation is free, so make sure you have your questions prepared and information ready to discuss in that first consultation, and I would be happy to help anyone erase their debt and start fresh. That is what bankruptcy truly is, not a bad word, but instead a tool to help you reset your ability to live your life free of debt and full of possibility. If you are considering it, let me help you make the journey just like I have for so many others. You are not alone in your struggles, and bankruptcy may just be the solution you are seeking. 

 

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CBD and Marijuana Laws

CBD and Marijuana Laws for Florida are Evolving

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We have a saying here at OLG. “Some laws stay the same, and others are always changing.” For Businesses and Consumers alike the world of CBD and Marijuana Laws are evolving within States and Federally. As of March 2019, a bill was passed that allowed smokable medical marijuana to be sold in state-certified medical marijuana treatment centers to patients with a medical marijuana card. Additionally, as of January 2020, the sale of CBD and Hemp products for consumption or application containing less than 0.3% delta-9-tetrahydrocannabinol (THC) concentration became legal for anyone over the age of 18 and to be sold without a medical marijuana dispensary license.

Marijuana at the Federal Level

Early in December of 2020, the House of Representatives passed the MORE (Marijuana Reinvestment and Expungement) Act. While this act is unlikely to pass in the Senate, the movement towards federal acceptance of marijuana use and sales continues to trend upwards; however, ultimately it should be noted that on a Federal Level, marijuana remains illegal as a schedule 1 drug for high potential for abuse and little to no medical benefit. In 2018, under the Trump Administration, the Department of Justice announced that Federal Prosecutors can pursue criminal cases wherever state and federal marijuana laws conflict. However, this policy has largely been symbolic thus far. Law enforcement officers make a majority of their marijuana arrests under state, not federal law.

Marijuana in Florida

As previously stated, in March of 2019, Florida passed a bill that allowed medical marijuana to be sold in state certified medical marijuana treatment centers to patients with a medical marijuana card. Additionally, Florida legislators are working on drafting regulations to allow edible marijuana to be consumed with a medical marijuana card, but at this time only smokable marijuana is legal. To be a qualified patient, you must be a resident of Florida and receive a diagnosis from a qualifying physician for a qualified medical condition (for example; cancer, epilepsy, HIV/AIDS, PTSD, Crohn’s disease, Parkinson’s disease, etc.). Patients and their caregivers will then be entered into the Medical Marijuana Use Registry by their physician. After this, patients and their caregivers must apply for a Registry Identification Card. Once all these steps are completed, your order for medical marijuana may be filled at a state-approved medical marijuana treatment center upon prescription by your doctor.

CBD and Hemp in Florida

In 2018 the Farm Bill was signed into law bringing sweeping changes to how we grow and consume CBD and Hemp products. The Farm Bill created a process that helped state and tribal governments establish Hemp Programs in which individuals could legally cultivate hemp. CBD and Hemp are legal to both cultivate and consume in the state of Florida for anyone over the age of 18 so long as the product contains less than 0.3% THC content. While no licensing is required to consume hemp products in Florida, licensing is required for those who wish to be grow and/or sell hemp products.

To sell CBD/Hemp in an ingestible manner, whether prepackaged or not you must have a food establishment permit. Additionally, there is further licensing requirements if your products have dairy or frozen components. Topical CBD application is considered a cosmetic and so long as you are selling the topical in or into Florida in its original packaging no license is required to sell. To grow and cultivate Hemp plants, you must not only apply for a license, you must also include fingerprints, environmental containment plans, transportation plans, and follow specific hemp cultivation site statutes, among many other requirements. 

What Does Having a Medical Marijuana License Prevent?

If you’re looking to get a CWFL (Concealed Weapons and Firearms License), there may be some conflicting elements. Florida’s Agricultural Commissioner, Nikki Fried recently addressed the subject on the podcast The Marijuana Solution. Her logic is that, due to many alcoholics and those addicted to prescription drugs owning guns, medical marijuana license holders should be able to as well, but from a legal perspective, this may not be as solid as one might assume. On top of stating that the Department of Agriculture would, “not be taking anyone’s concealed weapons permit, or refusing to issue a CWFL,” Nikki also publicly announced that she herself has both licenses. The incongruency lies in the fact that marijuana is still considered an illegal substance according to Federal Law, and that conflicts with those in possession being able to legally own a gun. Fried did mention that she plans to lobby congress about the issue, but truly only time will tell how the Federal Government plans to treat marijuana as a substance.

We recommend trepidation at every stride, and an innate understanding of your rights. Due to the fact that these laws are changing over time, it’s important that you speak with a lawyer immediately when you have questions. We’re here to help, and will make sure to keep you updated with the laws as they evolve, which we guarantee they will. If you’re ever seeking answers, make sure to contact an experienced attorney for your needs today.

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The Pathway to Citizenship

Citizenship is Possible – An Immigration Attorney’s Perspective

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What does it take to be a citizen of The United States of America? For many, being born into their citizenship means that the process was not complicated; however, for the multitude that are striving to attain it, the pathway to citizenship can feel daunting. These individuals, many times, have very real stakes involved in their case. They have a life here in the United States they maintain or are planning to begin a life here, and they do not want to sacrifice that opportunity and start over somewhere new.

One of our areas that we practice here at The Orlando Law Group is Immigration Law, and we are always surprised to see how much conversation is being had on the topic of immigration, but never much about the actual laws involved. Often, the process only feels daunting due to the fact that so little is known about what goes into getting your citizenship here in this country. For this article, we wanted to ask Nicole Payne, our attorney who has experience handling immigration cases and is very passionate about immigration law, her perspective on the pathway to citizenship. She recently helped a client naturalize and wants people to understand – the American Dream is not dead.

How did you get involved with Immigration Law?

I always say I did not choose immigration law. Immigration law chose me, and that’s because right out of law school, I started my own law firm, and I kind of had to take what came in the door. I speak Hebrew fluently, and so I was getting a lot of calls from the Israelis in the community who heard that there is an immigration attorney who speaks Hebrew, so they felt comfortable reaching out to me to help them with their cases. So I got into it at first because I was getting the calls. I took one or two cases to see how I would like it. I loved it and thought it was a very feel-good area of law for me, and so I just decided to go ahead and stick to it.

You recently helped a client gain citizenship. What was that experience like?

So usually, the clients who I’m helping get citizenship have been my clients for a long time because citizenship is the last step that is part of a very long process – years and years of different milestones along the way that we have to keep working towards and getting approvals for. So when you get to that citizenship we’re at the finish line and so excited to cross it. The clients applying for citizenship are usually ones I have built up a relationship with, so it’s extra special to me.

Even if it’s a new client, it’s very monumental. It’s a big deal to become a citizen of the U.S. This is what everybody’s goal was when they first came here, and it opens up a lot of doors for them. It’s always a great feeling, and I know my clients are very happy as well, which makes it even better.

What are some factors that you believe stop people from progressing or coming to you for help?

I think that there might be some fear involved. I think people are afraid that they might not pass the English test because they might feel like their English is not so good. They may be afraid of the civics history test. They’re trying to put it off because they are afraid that they’re going to fail the test. Other factors may include financial reasons. They don’t know which lawyer to hire and they’re just kind of comfortable where they are because they have their green cards and they’re able to work and they’re able to travel. They may be wondering what’s really the point in getting the citizenship, even though when you have your citizenship, it opens up a whole world of possibilities that you weren’t able to do before. For example, voting, having a U. S. Passport, not risking the chances of deportation if you were to get arrested.

What are some detrimental conditions that can be caused by waiting to talk to you?

I’m sure people know just from watching the news, but immigration laws change daily, so you could have a law that changes overnight that really jeopardizes you. It could be, you know, if you are afraid of taking that test well, they just changed the law that makes the test harder or the fees have increased.

You mentioned recently in a social media post that the American Dream is not dead – what did you mean by this?

I work with people from all over the world. These people have it really rough in their home countries, and all they want to do is come here, have the opportunity to make a better life for themselves and for their families. I watch these people work harder than anybody else that I know. They are working ten times harder because the American Dream is incredibly meaningful to them. So to me, that’s the American dream. It’s still very much people who are immigrating here and having more opportunities to have a better life.

When people complain about their lives here in America, I really wish that I could give them a different perspective because the immigrants that I know are so grateful for that American dream.

What are some common pitfalls you believe individuals fall into that can cause complications with getting their citizenship?

Okay, I’ll give you the most recent example is we just had an election. There’s a lot of false information out there as to whether you’re eligible to vote in election or not, and there are people who are getting terrible advice that if you are a lawful permanent resident, you can vote in a presidential election or any election. You absolutely cannot, and it’s a disqualifier for citizenship.

So right now we’re seeing a lot of that where people who have been here and have done everything that they needed to do, went through the entire legal process to come here legally and work on their path towards citizenship so they can provide this life for their family. Now they are not able to naturalize. They can’t get their citizenship because they were told some false information. That’s the biggest pitfall I’m seeing right now. People don’t really know who to trust, who to believe and there is an abundance of misinformation out there.

Another pitfall I see when it comes to citizenship is people who try to do the cases themselves and don’t submit the required documentation. They are not putting their best case forward, and it could result in major delays in their case. What would normally take under a year now is taking much longer.

What would your advice be to anyone reading this and wondering how they will begin the process?

Well, there is one easy way, and that’s just to consult with the expert like we were just talking about. You know, an expert’s advice is so invaluable. I make it really easy for my clients. I don’t want the client to stress. I don’t want them to worry. I just want them to have a very easy process where I tell them everything I need. I’ll easily lay it out on a piece of paper of what I need from them. Along as I have their documents compiled, I can put everything together, and all we have to do is get them to review. I like to have the client trust me that I will take care of everything, and that they don’t have to worry about a thing. If someone is reading this and needed advice on how to begin, I would say give me a call.

What is the difference between an immigrant petition and non-immigrant petition?

Simply put, a nonimmigrant petition is one that does not lead to citizenship. It’s for people who are here temporarily. An immigrant petition is one that can be adjusted from their current status of whatever that immigrant petition will result in, to become a lawful permanent resident, where you can then naturalized/become a citizen.

When and how can I apply for U.S. Citizenship if I am a lawful permanent resident?

It depends on how you became lawful permanent resident. If you have been a lawful permanent resident for five years, no matter how you got it, you can become a citizen. If you’ve been a lawful permanent resident because you were married and are still married to a U. S. Citizen, after three years of being a lawful permanent resident, you’re able to become a citizen.  So it could be three years or five years, depending on how you got it.

What are some factors that can help my case when it comes to gaining citizenship?

This is something nobody really knows this coming into the country, but if you are a male and you are between the ages of 18 and 26 and you enlist in the military for the reserve – that is something that they ask for, and most often times people don’t do it. The attorney has to explain and justify this mistake that this person made by simply not knowing that it was a requirement of them. If the client has done it, then that’s really good.

Also, if your case is clean, where you don’t have any history of criminal arrests and you don’t have any taxes owed. Other than that, as long as you have the right documentation moving forward and you have been a lawful permanent resident for the required amount of time, then there aren’t really many issues as long as you’re able to go to the interview and pass the tests.

What would you say is one of the biggest myths when it comes to Immigration Law?

One myth that I can think of is some clients believe that showing up to a scheduled interview with an attorney is a bad look. That is a myth. Clients think that if they have an attorney there that the hearing officer will think that they are hiding something. Perhaps that’s why they needed an attorney to come to their defense? That is, quite simply, just one big myth – the idea that an attorney’s presence could have a negative impact on your case.

Rather, it’s the opposite. If you are represented by an attorney and an attorney is present at the interview with you, then you most likely will only be asked questions that are in the scope of their right to ask. I highly suggest always having an attorney present at interviews. It’s not going to jeopardize your case in any sort of way.

Do you expect any changes to occur or see any trends happening in 2021 regarding Immigration Laws?

Well, there have already been a lot of changes in regards to DACA. We’re seeing a lot of positive changes for the DACA recipients and they’re able to now apply again, which hasn’t been possible for them for a long time. So hopefully in 2021 they will provide a pathway to citizenship for all DACA recipients. That would be huge. Do I anticipate that happening? I can’t say one way or the other because it depends on who’s president and whether it’ll pass through Congress. I’m hopeful and I know that there are a lot of lobbyists out there who are advocating for these people and I do get updates on it all the time. Hopefully, we do see a lot of positive changes.

What is one of the most gratifying parts of working in Immigration Law?

The most rewarding aspect is definitely the client’s satisfaction. They seem to be extremely grateful for the success that comes about from their immigration process. When they meet me, they don’t even know if they qualify for citizenship, permanent residency, or visas. The advice that I give them and a little bit of creativity to fit them into a certain category helps to prove their case.

It’s truly rewarding to get that approval because the clients are just so happy. It’s meaningful to them. I’ve had clients invite me to their wedding. I’ve had clients bring me their babies when their babies are born to meet me. It’s really a rewarding area of law and it makes a difference in my life and the lives of my clients.

As you can see, Nicole embodies what it means to work at The Orlando Law Group. We care for our clients because we know our job is tied to their life. Gaining citizenship is a process that begins and ends with commitment. The client must be committed to the journey, and they must take the time necessary to endure. It can be a nerving process, one that may have you feeling uncertain.

That is why we are here to assist. You need someone that has experience in immigration and that will help to persevere alongside you. Nicole and the attorneys at The Orlando Law Group not only are committed to their clients, but they begin by understanding and caring for their client’s story. So very often, that is the story of hope. Many individuals dream of building a life here in The United States and together, we help that dream become a reality. For those that believe, that are willing to work with us and stay the course, their American Dream will never die, and we will never stop helping them achieve their goal of citizenship. If you are in the process of becoming a citizen and have questions – do not hesitate to reach out. Our consultations are free, and a conversation with us can only help.

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key

The Current State of Foreclosures, Evictions, and Real Estate

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With the changes brought about by the COVID-19 pandemic, families have struggled more than ever – and this is evidenced in the strain put onto the housing industry. We live in a state where many maintain surmountable income through investment properties, taking advantage of a thriving rental market bolstered by tourism. It all works very well on a good day but consider the sudden halt many businesses and staple jobs have come to, and you have a market that for many cannot make ends meet.

Luckily on March 18th, measures were taken to begin to try and help the situation. A moratorium was placed that could legally protect effected renters from being evicted. This moratorium, and its consequent extensions have created a murky environment where many do not understand what applies to them, what the end-goal is, and what they will be responsible for when the moratorium is over. In this article, we want to take a deep and current dive into the state of foreclosures, evictions, and the extended moratorium so that you have a better understanding of how we are moving forward together.

The Extensions Continue

As of the writing of this article, the current extension to the moratorium on foreclosures and eviction processes will run until the end of the year, December 31st. Its purpose is to assist homeowners and renters that have undergone financial hardship because of job loss due to COVID-19. From a legal perspective, whenever we see language like this, we are always thinking of the word proof. Pay stubs and any written evidence that can back and prove that you lost your job due specifically to the pandemic will help strengthen your argument. As one would expect, there will be those looking to game the system, so hiring a lawyer to help you through the process is absolutely be a good idea.

In the lending world The Department of Housing and Urban Development (HUD), the Department of Veterans’ Affairs, and the Department of Agriculture have all extended their foreclosure moratoriums on guaranteed or insured loans covered under the CARES Act until December 31st. Fannie Mac and Freddie Mac also have extended their moratorium on foreclosures for enterprise-backed, single-family mortgages. All of this has one main goal, to help stave off sudden, major deterioration of the housing market. Protecting those who are paying rent alongside those who are paying loans off will hopefully allow for time to adjust, catch up, and recalibrate.

Payments Will Be Due

It is vital to understand the implications of these laws. Payments are not being waived. As a matter of fact, the true definition of moratorium is a temporary prohibition of any activity. It, essentially, is a legal pause button, extending but not absolving the money that you owe. If your finances have been impacted by the pandemic, then pivoting will be essential. For those who are impacted in a way that substantially cripples their finances, bankruptcy will have to be a consideration, and that is where hiring a lawyer could work to your benefit. Sophia Dean, legal attorney with The Orlando Law Group, notices a degree of similarity between now and when she helped individuals through the housing crash of 2008.

“When I would consult individuals who were facing immense financial strife, I would encourage them by helping them understand that they were beginning a journey, and that it would take time to get back to where they needed to be. Honestly, many nights I would lay awake with the weight of their situations on my heart, thinking of creative ways for us to build back a foundation.

My advice is do not wait. People make the mistake of thinking that a lawyer will charge you for every second you spend on the phone or in a zoom when the truth is quite the contrary. My consultations are free. A conversation with me is free, and I encourage those struggling to have that conversation and call me immediately. The most important action we will do during this time is make informed decisions.”

Sophia Dean, Attorney at The Orlando Law Group

The Impact On The Real Estate Market

It is a different time for those working in the field of Real Estate, given the changes brought to what was a market with a steady flow of inventory. With less families and individuals putting their property up for sale, prices have gone up. When inventory is low, the power goes to the seller. Lower interest rates have encouraged buyers to enter the market, and we anticipate buyer competition to be fierce, even throughout the pandemic. For an analysis of how COVID-19 has affected the market, we asked Michael Curtin, Commercial Broker of HIVE Commercial Realty his interpretation of the Real Estate Market.

“We’ve seen inventory go down on the residential side, but many commercial opportunities are still growing. With hardship always comes a shift in the market, and this will be no different. I anticipate that we will see many find difficulty making ends meet, and therefore are forced to turn over their real estate portfolios or alter their plans to accommodate the changes brought about by the pandemic.

My biggest recommendation right now – stay flexible with your goals and expectations. If you can grow your business in a creative way to accommodate social distancing, now’s the time to do it. Elevate your marketing and work hard to innovate. Learn the market so that when it begins to change, you can change with it.”

Michael Curtin, Commercial Broker at Hive Commercial Realty

Our Key Takeaways

We are beginning to circle back around to one year since protections were enacted for individuals impacted by the pandemic. With the extensions stretching to December 31st, owners experiencing financial hardship due to COVID-19 may pause, suspend, or reduce mortgage payments for 180 days. If that owner receives forbearance and decides to apply for a second delay, the maximum number of days they can receive forbearance is 360 days total.

This all hints at an unavoidable, eventual elephant in the room. When the eventual resumption occurs, there will be hardship. Many will struggle to make up the money owed, and there will be situations without easy answers. That is why hiring a lawyer and working with a law firm that has experience will be vital. We are poised and ready to help, to lay away at night coming up with options because we care for our clients. We see ourselves in them. We know they live in a complicated world that seldom takes into consideration their concerns. That is why you have us to help you navigate, no matter how murky the waters may seem.

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CBD and Marijuana Laws

Why Copyrights Could Be The Biggest Area Of Law In 2021

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Why the Resurgence of Relevancy?

Digital content is being shared ALL the time. This transience of information has led to an influx of content being created and shared across all mediums. Once placed into the public domain, as easy as it may seem for us to disseminate an original work, it is even easier for someone to imitate it. This has sparked a new and revitalized relevance for copyright law and understanding how digital mediums have made it more difficult for us to determine who owns what. All of this leads us to believe that, in 2021 and moving forward, copyright could potentially be one of the biggest areas of law for a generation born on the internet.

The Stakes

For many companies, copyright suits can easily involve millions of dollars, simply because the stakes are tied to the company’s branding or the product created.

Additionally, because we are in a new digital era, future copyright cases can set brand new precedence, which may alter the protections that copyright owners have enjoyed for so long. The ability to transform original works, either through parody or criticism, has created an influx of cases that require a factorial evaluation to be conducted by the courts. Was the work transformative enough to make it unique?

Such factors include i) the purpose and character of the use, which includes whether the use is of a commercial nature or is for nonprofit educational purposes; ii) the nature of the copyrighted work, iii) the amount and quality of the work that has been copied; and iv) the harm brought by the transformed work.

For the small-time influencer, this could mean the difference between a few paychecks, but for companies, this can be a determining factor in their ultimate success. To explore how copyright law is being used today, we wanted to break down three cases that could be influential in 2021.

Three Examples of Cases on the Block

  • Google v. Oracle

This is a case involving the application of copyright protection to software owned by Oracle and resolves the question regarding whether Google’s use in creating an android operating system that is comprised of Java coding constitutes fair use. In January of 2019, Oracle initiated a case against Google, alleging improper use of 11,000 lines of Code from JAVA SE, which was found not to be covered under fair use by The U.S. Court of Appeals for the Federal Circuit. This case has made it all the way up to the United States Supreme Court, who heard oral arguments on the issue Wednesday Oct 7, 2020, and has yet to reach a decision on the matter.

The main challenge that lies ahead is in determining whether the specific code used by Google within the Android interface is considered to be an algorithm, formatting, functions, logic or system design, which then would not be covered under copyright law, as they are not considered a means of creative expression. Digital coding, although used widely, can become the subject of stringent copyright criticism. As we move into a more digital frontier, it becomes important to understand if the coding you are using can be fairly used.

  • National Music Publishers Association v. Peloton

Music has generated a multitude of copyright cases as different platforms have been developed and used for streaming purposes. To place this into context, take the case National Music Publishers Association v. Peloton. In this matter, a $370 million lawsuit, which more than doubled the original $150 million lawsuit, was filed by the National Music Publishers Association last March, when it was alleged that Peloton used over 1,000 musical composition without obtaining the proper licenses to use them. A settlement was reached where the creators for the songs were properly compensated for the use of their music included in the Peloton experience. Peloton took the initiative to remove the NMPA protected songs for all workout videos provided to the public.

  • Suess Enterprises LP v. Comic Mix LLC et al

This third case involves our beloved Dr. Suess and a claim brought by his estate against the publisher for a work that mashed up “Oh, the Places You’ll Go!,” and other Dr. Suess works, alongside Star Trek imagery as well as characters from the original fictional franchise. The United States District Court for the Southern District of California found that the comic book’s use of the material was fair use and was treated as parody rather than a complete infringement on the original. This “highly transformative work” allowed for well-known characters to interact in a way that was not so different from their original works.  

This being said, it doesn’t always happen that way. The opposite actually occurred in Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997), whereby an author used the characters created by Dr. Seuss to retell the story of the O.J. Simpson murder trial. The appellate court determined that the author’s use of such characters in this work created a satirical piece, not a parody. As such, it was not transformative enough to be protected from a copyright claim.

Our Take on the Matter

These cases bring to light how important certain words are when reflected in new, legal light. Gaining clarity on terms like parody and fair use is vital for navigating in a way that avoids legal pitfalls. 

What is parody?

 Miriam-Webster defines parody as “a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule.” Parody is important to establish, so that some measurable line of difference exists between your work and the work you have utilized.

What is fair use?

Fair use is a doctrine allowing for the use of copyrighted work for transformative purposes, such as for criticism, parody, comment, news reporting, teaching, scholarship and research. Fair use is becoming a common practice, especially given the rise in reaction content – videos and posts that are offering their opinion on a certain song, movie, or work of art.

 Copyrighting is crucial to the protection of your works, no matter the medium.  If you’re creating digital content online, having an understanding of copyrights will help you be confident in your creations. You can rest easy knowing that your work remains original. Not only this, when establishing a business, you need to take into consideration how unique your endeavor is.

What This Means for the Future

With technological changes, come changes to the law. Copyright laws will have to alter and grow to accommodate a market that has become highly digitized, paving the way for possible fair use claims in years to come. As a company or brand’s content gets used by the public, they will have to determine if it is worth litigation or not, especially if it grants them popularity and added visibility. One thing we can be certain of: copyrights have never mattered more than they do right now. That is why hiring a lawyer can offer you armor. It can be the difference in how protected your content, business, or brand remains.

Want to know the difference between trademarks and copyrights?

We’ve got a blog that talks about exactly that.

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Safety Tips

Trick-Or-Treating Safety Tips

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Association Managers and Board Members have been under tremendous pressure and are faced with many unprecedented circumstances this year.

As Halloween approaches, many communities will be filled with little trick-or-treaters, and each Community Association must decide whether they are going to permit trick-or-treating within their neighborhood.

While the Board has the authority to make decisions on behalf of the Association for the safety and wellbeing of its residents, we highly recommend that you consult your Association’s attorney as you evaluate what stance your community will take in regards to trick or treating and ensure that your board follows the proper protocol in implementing your decision.

For those Associations choosing to allow trick-or-treaters within their community, here are a few safety tips that you can share with your residents:

For Residents wishing to hand out candy

  1. Wear a mask
  2. Hand out the candy to the kids individually (do not let the kids pick out the candy)
  3. Use hand sanitizer or wash your hands with soap and water in between handing out candy; or
  4. Set up a treat table outside with the candy spread out or placed in treat bags so that the kids can grab one item without touching the rest

For Kids going trick-or-treating

  1. Wear a mask (not a costume mask)
  2. Take hand sanitizer and use it frequently
  3. Do not travel in large groups and stay with the same group
  4. Stay outside
  5. As soon as you get home wash and change clothes

Remind your residents that your primary objective as Managers and Board Members is the health, safety, and well-being of all residents of the Association. As a community, you must put your neighbor’s health over convenience and discomfort.

Share these tips with your residents so that they are aware of the policy. Speak with your Association attorney as to the best way to adopt any guidelines and share them with your community.

The best way to stay involved is through thorough communication, and as always, we’re here to help in any way we can. Our attorneys are experienced, and ready to help you find solutions. They also care about the communities they are involved in.

Want to read more of our materials on Community Associations and HOA law. Visit the blog section of our website – where all of our articles are posted.

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airbnb

Home Away from Home – the Truth About Airbnb

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     Vacation Rental sites such as Airbnb have exploded in popularity recently, as they provide the experience of a home away from home with prices that often rival hotels. The United States alone has 660,000 listings, making it the Nation with the highest number of Airbnbs. While it may seem like a dream experience, how much do both vacationers, and hosts really know about what they are liable for and what they are protected from? What happens if you are the host, and something happens to the property because of the clients that decided to rent? Conversely, what happens if you are the vacationer, and part of the property becomes damaged based on prior conditions, but you are now being blamed? Airbnb readily makes promises of protection for both parties, but what true, legal armor do you receive when you agree to work with this company?

Who is AirBnb

     The vacation rental market has exploded in popularity recently as renters seek unique experiences in worldwide locations, all at the touch of their fingertips. Airbnb prides themselves on providing just that, and their process is streamlined to make it quick and easy to book. Their origins just so happen to be steeped in speedy resolutions. In 2008, Airbnb (Air Bed and Breakfast) was formed when a conference ran out of hotel space and the founders opened their home to renters in need. The company has come a very long way since then. Today, Airbnb boasts 750 Million all time arrivals, 7 Million Airbnb listings, and 220 countries with listings available. However, it is what Airbnb decides not to tell you that can be even more interesting and applicable to their services.

How Frequently Does Litigation Occur?

     One might be thinking, “Does Airbnb ever undergo complex litigation?” According to an article published by Bloomberg in February of this year, Airbnb has filed 11 lawsuits against an American city or state government since it was founded. It has appealed an adverse decision at least three times. The article states that half of those legal hurdles have occurred in the past two years. Not only this, but litigation against Airbnb has also risen, with the company being involved in 230 cases through the end of 2019. These ranged from video cameras in bedrooms to severe bedbug infestations and even a situation where a guest tossed a lit cigarette into the trash and burned the property down. As one would expect, Airbnb advertises themselves as being expeditious and user-friendly, but complications beg the question, “What protection does Airbnb truly offer?”

Host Protection

     Airbnb readily advertises two different programs to assist Hosts: Host Guarantee and Host Protection Insurance. The Host Guarantee provides protection for property damage to possession, units, or home, against a guest. It is important to note that this does not replace homeowners or renter’s insurance. The Host Protection Insurance program may cover hosts in the event of third-party claims of personal injury or property damage. Airbnb, however, has an extensive list of exclusions to these programs that are important to note.

  • anything related to mobile, aircraft, or auto equipment
  • assault and battery
  • Chinese drywall
  • communicable diseases
  • contractual liability
  • cross-suits
  • employment related practices
  • electronic data
  • distribution of material in violation of statutes
  • expected or intended injury
  • fungi or bacteria; exterior insulation
  • liquor liability
  • nuclear risks
  • pollution
  • product recall
  • sexual assault
  • watercraft
  • war intelligent

   That list is not indicative of all the exceptions included and any host should read into what they are not being covered for before hosting guests.

Renter Protection

     Traveling can be a stressful time for vacationers, so you should always know what will occur if the worst happens. One might assume that traveler’s insurance and Airbnb’s renter protection policies might contain similarities. Ultimately, Airbnb offers no protections that even come close to replicating traveler’s insurance. Airbnb does offer a 24/7 customer support line for reporting instances such as a wrong location listing, an incorrect number of rooms, unknown animals, and more. This comes nowhere close to offering comprehensive protection to a vulnerable individual on vacation.

     Should an incident occur where a guest could even begin to think about considering legal action, they may not be able to. In a recent case in Florida’s Second District Court of Appeals, Doe V. Natt, Airbnb argued that “the Does’ claims were subject to arbitration under Airbnb’s Terms of Service, which the Does agreed to be bound to pursuant to a “clickwrap” agreement they had entered when they first created their respective Airbnb accounts online.” The Court ultimately remanded the case for further decision, however, until that decision is made renters should be aware that any case they wish to bring, may be subject to Arbitration.

Go or No Go?

     You may be asking yourself if Airbnb is worth the risk from either perspective now. As Airbnb says, the best remedy is always to do your own thorough research first. This is very pertinent advice with any company you decide to work with, large or small. Understanding your legal protections from the beginning will set your mind at ease, and if something does go wrong, you will have a familiarity with where to begin. Check out reviews, photos, and guest experiences before booking. If you have specific questions, do not hesitate to ask them. More knowledge allows you to make the best possible decision for your property as well as your family and friends.

     Hosts should make sure to remove objects they are concerned about, as well as vet their homes for potentially dangerous areas. Ultimately, it is important to know that some protections are in place, but the best safeguard for your property and vacation is some good old-fashioned research. Having a law firm on your side, like The Orlando Law Group, for both property projection and personal injury, while also exercising caution as both a renter and host will put you in the best position.

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Personal Bankruptcy

Bankruptcy Could Offer You A Way Out

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There is no question that the U.S. has a financial problem. The statistics are indisputable.  Americans carry an average personal debt of over $90,000. Many times, it’s through no real fault of their own. There are so many factors to consider. The cost of living continues to rise, and as it does so it is becoming easier for people to get credit when they may not have the means to cover their bills.

Additionally, with the unemployment rate skyrocketing due to the COVID-19 pandemic, times are difficult for many people, and that includes the struggle with finances. We’ve all seen the headlines about looming eviction rates and bankruptcy surges, but what those headlines won’t tell you is that for many, these issues are not on the horizon, but rather on their doorstep.

While some people tend to shy away from bankruptcy or think it is a negative thing, that isn’t the case at all – when it’s processed the correct way.

What is Personal Bankruptcy?

Personal bankruptcy is a legal process in which a debtor files with their local court system. As a result, the debtor’s personal assets are evaluated, and some may be sold in order to offer creditors a portion of what they are owed.

The process of filing for bankruptcy also creates something called an “automatic stay,” which means creditors are blocked from collecting your debts until the court proceedings are over. This can give you a bit of breathing room while your case is being reviewed.

Bankruptcy works differently depending on an individual’s financial situation and how the court sees it. In some cases, a financial plan may be worked out that better fits with your income and needs, so you can pay back your creditors at a different rate. Other times, your debt will be completely eliminated.

In the case of Chapter 13 bankruptcy, the debtor will develop a plan based on their personal finances to repay their creditors over a fixed period of time.

Chapter 7 or Chapter 13?

Consumers generally file either a Chapter 7 or a Chapter 13 bankruptcy. Some people believe that a Chapter 7 bankruptcy is the best way to go, but that is not always the case. Everyone has their own unique situation which should be analyzed by a professional to determine whether a Chapter 7 or a Chapter 13 bankruptcy is more appropriate. For example, if you do not have a lot of unsecured debt such as credit card debt or medical bills, but you have a home worth $200,000, a first mortgage of $210,000 and $75,000 on your second mortgage, and you want to keep your house, filing a Chapter 13 bankruptcy may be appropriate for you because you may be able to “lien strip” the second mortgage.

On the other hand, if you have a lot of unsecured debt such as medical bills and/or credit card debt, then Chapter 7 may be more appropriate for you. However, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 made changes to the Bankruptcy Code, which makes filing a Chapter 7 bankruptcy more complicated. To be eligible for a Chapter 7 bankruptcy there is a 2-part test. First, there is the “means test”. This subjects debtors to an income-based test. But if the debtor’s income is below the state’s median income, then the debtor is not subject to the means test. Additionally, debtors with primarily (more than 51%) business debts (including investment properties used as rental properties) may file a Chapter 7 bankruptcy regardless.

However, even if you pass the means test, you still have to pass a second test known as the “abusive test”. The United States Trustee or any creditor can move to have your case dismissed. The bankruptcy Court could dismiss your case if the Court finds that you have the ability to pay back a significant portion of your unsecured debts.

If you are eligible to file a Chapter 7 you are looking to liquidate your debt. You are able to keep some property and may have to let other property go. You can keep exempt property.

A Chapter 13 bankruptcy is a form of reorganization. The debtor proposes a plan to pay his creditors over a 3 to 5-year period. Generally, the debtor keeps property and the creditors get less money than they are owed. However, the unsecured creditors must receive at least as much through the Chapter 13 plan as they would have received in a Chapter 7 liquidation.

The Benefits of Filing for Bankruptcy

One of the biggest benefits to working with a bankruptcy lawyer well before filing is the knowledge about the process that professional counsel can share. Because there are time restrictions on how often you can file for bankruptcy, you’ll want to make sure you are in a position to get rid of the maximum amount of debt.

Also, it is essential to consider what might happen if your financial position changes between now and filing for bankruptcy. If your situation improves, should you back out of filing? If it worsens, should you file more quickly?

Working with an experienced attorney will help clarify the answers to those questions and give you peace of mind as you move forward.

Is Bankruptcy Right for You?

Unfortunately, bankruptcy has been stereotyped in a negative light over the last several years. While it certainly is something that should be used as a last resort to get out of debt, it doesn’t mean your credit will be ruined forever, and it isn’t something you should be embarrassed about. Bankruptcy exists for a reason – to help you get back on your feet.

If you are buried in debt, no matter the reason, and you’re not sure what else to do, bankruptcy could be your best option to get a fresh start with your finances.

Feel free to contact the Orlando Law Group for more information on our bankruptcy services and how we can go to work for you to start the process. Our years of expertise with bankruptcy law will make the entire experience as easy on you as possible, so you can focus on eliminating the debt from your life and starting over with your finances in a healthy and responsible way.

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trademark

Trademarks – What You Need To Know

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Trademarking the logo and name of your business is essential to maintain its originality in a world where people have the tendency to see an idea that works and try to make it their own. Not everyone takes the appropriate steps to ensure that their company name is registered to only be used by them. Not only this, Trademarking is commonly used as a catch-all phrase and its definition becomes ambiguous. In this article, we will provide clarity on the matter. Let us start by defining what Trademarking really is.

What is Trademarking?

Trademarking is the registration process that prevents others from not only using the name of your business, but the symbol that accompanies it and/or the design you worked so hard to create. This process also compares your mark alongside all other previously registered marks to verify whether it is already taken or is similar to an existing mark. Trademarks allow you to exclusively use of your own symbol and name in your ordinary course of trade (the sale of goods or services), within a certain geographic area.

A Tale of Two Businesses

It is important to note that even after trademarking your logo, there will always be others who attempt to use the likeness of your business and even downright attempt to sell the same product and/or provide the exact same services you do. Take the case of Paris Banh Mi Café Bakery as an example in Orlando. The original registered trademark owner has sought to stop a former partner from using almost the exact same name for his business, Paris Banh Mi & Tea Cafe. When this type of infringement occurs, depending on how the mark is registered, mark owners can bring a civil action in state or federal court against those who attempt to replicate their name.

If the first mark owner is successful in proving that he owns a valid, protectable trademark, and that there is a likelihood that confusion will be caused by the copycat’s use of his mark, an injunction may be ordered. This will require the copycat to cease all use of the name. There are other remedies that the Court may order, such as destroying or turning over of any product that uses the mark owner’s name, monetary relief including profits made by the copycat, any damages sustained by the mark owner, and any costs sustained as a part of the action being brought or an order requiring that the copycat pay for the mark owner’s attorney’s fees.

In this case, the former partner was second in line to register his mark and therefore, Paris Banh Mi Café Bakery has a stronger likelihood of obtaining an injunction against Paris Banh Mi & Tea Café.

Trademark Infringement Factors

There are several factors that the court will take into consideration when determining that a party has infringed upon an already existing trademark. Those factors include:

  • The resemblance between the marks
  • The similarity of the marketing methods and channels of distribution
  • Characteristics of the prospective purchasers and the degree of care they exercise
  • The degree of distinctiveness of the senior user’s mark
  • Where the goods or services are not competitive
  • The likelihood that prospective buyers would expect the senior user to expand into the field of the junior user
  • Where the goods or services are sold in different territories, the extent to which the senior user’s designation is known in the junior user’s territory
  • Intent of the copycat user
  • Evidence of actual, legitimate confusion

Source: Anderson v. Upper Keys Bus. Grp., Inc., 61 So. 3d 1162 (Fla. Dist. Ct. App. 2011)

What about Dilution?

Dilution occurs when a business of a different trade begins to use a famous mark, which then causes the uniqueness of the famous mark to diminish or tarnishes the mark’s reputation. When this happens, the court investigates how distinct the service or product containing the similar mark is compared to the original mark holder’s service or product. They will also consider how long and to what extent the product or service is used and advertised, as well as the degree in which prospective purchasers can recognize one from the other.

In an action for dilution, an injunction may be brought against the user of a mark if said mark has become widely recognized by the general public, and if the use of the mark is likely to cause the diminishment of its distinctness. In other words, if a mark is so well know that it is instantly associated with a product, anyone who tries to replicate the mark and place it on a good or service that is different from the famous mark holder’s good or service, may be prohibited from doing so, based on the fact that it may cause confusion.

Where is the Line?

Trademark Law, which is notably different from copyright law, does indeed have gray areas. Where copyright law encompasses original works of authorship, such as books, musical compositions and artistic pieces, Trademark law provides ownership of a phrase or name of a good/service. The line, many times, falls between whether the infringement marks a significant business venture. That is why, if you’re considering creating a business of any kind, your trademark is going to matter, and how your business is protected will minimize any gray areas that can potentially exist.

How to Register Your Trademark

Registering a trademark can be done individually by state or on a federal level. For example, Florida charges $87.50 per classification, which is essentially the area that you would like your trademark to encompass (clothing, mugs, gaming, advertisement, or services providing for food or drinks). A Federal Trademark is sought from the United States Patent and Trademark Office and costs between $225.00 – $275.00 per class of goods or services, which will allow you to stake your claim in your own name, throughout the entirety of the U.S. When you go through this process, it is a good idea to seek an attorney to not only help you to not only navigate uncharted waters, but to ensure that all due diligence is maintained.

Our Advice

Start your business on solid ground. If you are going to plan and spend time formulating a company, you deserve to get the foundation to a level where you can feel confident and comfortable. When Paris Banh Mi Café Bakery created their company, the partnership was strong, but that did not last forever. The owner of the store is fortunate he filed the trademark early. That action created legal armor that will protect the rights to his business name, which may encompass the products being sold. That is why trademarks matter, and that is why you must get it right from the very start.

As always, our attorneys can help make sure you have that legal armor. They know the pitfalls, and know how to avoid them so that when you are ready to begin your next business venture, you know who to call.

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tiktok

For TikTok…The Clock Is Ticking

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Social Media is much more than a tool. It is even more than a product. It is, simply put, a way of life. Just like mobile phones slowly became standard, everyday technology, so too have platforms such as Facebook, Instagram, and now – TikTok. The premise behind the app is simple, short video content that rewards syncing the action to music combined with a “for you” page that tailors what you find based on your interests. A slow yet steady pace of growth has allowed TikTok to rise as a platform of choice for young adults, but nothing could have prepared the app for the notoriety it is receiving now.

The Time Frame

Trouble arose when the stream of data aggregated from the platform was put into concerning crosshairs. The company that owns TikTok, ByteDance, was called into controversy when President Trump stated that he would consider banning the app, given the fact that it could potentially make US user data accessible to the Chinese government.

Instead of immediately banning the app, the President instead, on August 8th, gave a time frame for the company to become compliant.  This executive order gave TikTok about a month and a half to successfully locate a buyer. This time-frame was later extended to 90 days, and ByteDance was ordered to delete any data obtained from U.S. TikTok users.

An Uptick in Users

For TikTok, business has been booming. With the pandemic creating a sense of isolation for many individuals, the app has surged in popularity. This being said, the U.S. isn’t alone in its trepidations. India has already banned the app, and Australia is said to be considering it as well.

The significance of this executive order cannot be understated. It marks an important, invisible currency that apps attain: your data. Apps like TikTok can attain large tracts of information from their users, such as location data and browser history. It’s a new world we live in, one where this transaction of data happens so frequently that we have become accustomed to it. How many individuals do you think truly read the terms of service?

Predictive Precedence

You may be thinking to yourself, “I don’t use TikTok, so how does this apply to me?” The truth is that we all use social media to some degree. It has become a way of life, and with that comes the sharing of swaths of data that used to be harder to attain. We need to know that with this sharing comes a potential vulnerability to so much transparency. Without the full understanding of how that information is being used, it can set dangerously complex legal stages that are difficult to navigate. Although there is no proof yet that the Chinese owned company ByteDance has relinquished any personal data to the Chinese government, understanding that the potential exists is a reality we must confront.

Our prediction, as a Law Firm, is that companies will come under more scrutiny in the future. Even those that are owned domestically are not without their faults. Facebook was in the spotlight this year for its decision to abstain from fact-checking. Notice a similarity? Both cases carry the concern about the passage of information, and how that information is put to use.

We can absolutely attest to the fact that court cases take into consideration social media presence. Photo evidence, especially photographs that contain vital information such as where the photograph was taken and when, are powerful and can culminate in a decisive moment for the client’s case. The old adage, “With great power comes great responsibility,” remains true. With so many users giving their information so freely, there is a great deal of responsibility placed upon the company to be transparent with how that information is handled.

Buyers Coming to the Rescue

Still, you don’t have to delete your TikTok account just yet. The fact remains that, for the app to remain viable in the United States, the clock is ticking to find a buyer for the company. Corporations like Microsoft, Walmart, and Oracle have expressed interest in ownership, and this would be a significant solution in keeping the app usable. If that sale does not happen, the government could act by eliminating the downloading of the app from the Apple and Google store.

Many tech specialists believe this will not stop the use of TikTok, mainly because users can still install rogue apps on Android devices without accessing the Google Play Store. The precedence this sets is for the U.S. Government to have executive power over the download and use of applications, regardless of cause. It is a complex scenario, given the fact that by waiting to prove that information has been compromised, we run the risk of losing data that could have been protected.

The Potential Victor

Microsoft announced on Sunday that its bid for ByteDance has been rejected.  The announcement stated, “We would have made significant changes to ensure the service met the highest standards for security, privacy, online safety, and combating misinformation. We look forward to seeing how the service evolves in these important areas.” It would appear that, based on this language, Oracle has emerged as the potential victor and, barring negotiations that are planned to take place this week, will be forming a partnership with TikTok to ensure the application remains viable in the United States.

How this can improve data control and confidence that information is not being ascertained in a potentially destructive way remains to be discovered. Oracle is expected to make an announcement later with discussions evolving this week on the matter. The clock is ticking to finalize a deal, but TikTok may be one step closer to finding a viable avenue to sustain their presence in the United States market, a rumored 100 million monthly active users.

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Personal Injury Lawyer

Need a Personal Injury Lawyer to Fight for You?

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There are 6 million car accidents each year in the U.S. alone. Some tragically end with fatalities, but many others end with injuries – both great and small. Many individuals make the mistake of thinking to themselves, the odds of me being in a car crash are so low that it will most likely not happen to me and preparing could potentially be unnecessary.

Worse than this, sometimes individuals even get into an accident and do not realize they have been injured until later, and do not take the necessary actions that could allow us to move quickly and get them the relief they need.

While experiencing a car accident for yourself can be terrifying, there are a few things you should always do immediately after an accident.

First, it’s important to make sure that everyone is okay, including your passengers and the people in the other car(s) involved. Then, you should always call the police and make sure a report of the accident is filed. This legitimizes your circumstances in the eyes of the law.

This next step is very important, and because of the stress involved in an accident, it can often be overlooked. If you sustain any type of injury from the accident, your next call should be to a personal injury attorney.

Why Work With a Personal Injury Lawyer?

If you are injured in an accident, you might be feeling lost and confused as to what to do next. This is especially true if you believe you should be given some type of compensation for your injuries.

An experienced personal injury attorney understands your situation and will be able to answer any legal questions for you, as well as go over your rights and what you can expect from a personal injury case. Personal injury lawyers understand the case law and can lay the groundwork for you, so you don’t have to do it on your own. It is not only about the groundwork they can lay down, but also about how they can utilize their prior experience of working cases, many of which most likely contain similarities to your situation. Lawyers have teams and resources that can work together to help make your case successful and fair.  

Additionally, personal injury attorneys have experience and rapport working with insurance companies, as well as the lawyers for those companies. Insurance companies may want to limit the amount of compensation you receive or attempt to not allow you anything at all.

If your insurance company still doesn’t want to budge, then your personal injury lawyer can weigh out the evidence in court, proving your case and helping you to receive what you really deserve in order to cover the costs of your medical bills. You may even be able to bypass going to court altogether. Many times, simply working with a personal injury attorney can help you to avoid going to court with your insurance company. In order to avoid a court battle, the insurance company may be more likely to settle with you. The unfortunate fact is that they are less likely to settle if you choose to fight them on your own. 

When to Contact a Personal Injury Attorney?

If you’ve been injured in a car accident and you believe that you deserve some type of compensation for medical bills, don’t feel as if you have to go through it alone. You have already been through enough.  

Our personal injury attorneys at the Orlando Law Group have the experience you need to handle difficult insurance companies who have been unwilling to give you the compensation that you deserve. By working with our team, you will let your insurance company know that you’re taking your case seriously. That’s what we’re here for: to be the team that fights for you. Feel free to contact us today to discuss your accident. We will go over the evidence with you and make sure justice is served and that you get the relief that you deserve.

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Eviction notice and gavel on a table.

The Tidal Wave of Evictions Begins to Break

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With COVID-19, there has been a blanketed feeling of stress brought about by financial strife. Many individuals and businesses are struggling to make their normal payments. This has caused all eyes to stay locked on the monthly moratorium that keeps getting extended every month. This acted as a barrier for many, but also increased the unknown moment of when we would begin to see the ripple effects brought about by a fractured market. We may be at the beginning of the tidal wave of evictions.

What makes the latest Moratorium different?

In the latest extension, which brings the new date to September 1st, new language seems to allow eviction filings to resume. It may even allow for some residents to be removed from their living conditions. The statewide moratorium that was put into place before encompassed more protection for renters, suspending, “any statute providing for an eviction cause of action.” Even though the interpretation of that statement was thought to prohibit landlords from filing, many began the process anyway. A staggering statistic: about 400 commercial and residential evictions have been filed in Orange County as of this time. In terms of what exactly the newest extension suspends, it only halts the “final action at the conclusion of an eviction proceeding” and only for tenants who have been “adversely affected by the COVID-19 emergency.”

It seems that language may open the floodgates, and we may begin to see the onslaught of evictions begin to move forward. A standard amount for Orange County is 1,000 evictions filed every month. With the amount that has built up, we could see at least 5,000 cases filed.

Why is Central Florida vulnerable?

Central Florida is particularly a vulnerable location, being that it relies heavily on the tourism industry. Homelessness, industries on the brink of shutting down, and a wave of restaurants closing permanently are all a part of the predictions being placed at this time. With the language of the new moratorium, landlords will see much more success with their filings. Not only this, but the fact that so many tenants, who are accustomed to the moratorium being unaltered, will not realize the differences and when they are summoned to court may chose to ignore it. If so, this could result in them having five days to reply. If they do not, they could lose their case and automatically be kicked out.

Many have faulted the fact that this extension has been put forward without more clarity on how it differs from the ones that have come before it. Not only was this placed days before the prior moratorium was set to expire, it also came without comment or clarity from the governor. It was not until later that he stated that the order would only effect those who have not been financially impacted by the pandemic.

Caught between difficult dilemmas, the change was implemented to help give landlords and property management companies assistance when their tenants refuse to pay. Sifting through those who have been affected by the pandemic and those who have not may be a tough task. In June alone, 1.02 million Florida residents were still without work. This is a frightening figure, and one that indicates that Florida will be heavily impacted economically for some time.

A Truly Difficult Dilemma to Solve

Even still, the waters are made murky by those who would take advantage on the pause in evictions. For the month of June, property management executives as well as mom-and-pop landlords wrote the Orange County Commission stating that some tenants are using the situation as an excuse to not pay. Chip Tatum, CEO of the Apartment Association of Greater Orlando, mentioned that 65% of its members have been in negotiation to pay, while about 27% have been unresponsive or unwilling to work towards a plan.

For the eviction process, normally a three-day notice is taped on the tenant’s front door. If the tenant does not comply within that time, the landlord may file a complaint with the court, in which case the tenant will be served a summons. To get a hearing, the tenant would normally have five days to deposit the owed rent into the court registry. One of the defenses that tenants may utilize revolves around paying this court registry. If a tenant was adversely affected by the pandemic, they may not have to pay this fee. If a tenant can illustrate loss of employment, diminished wages, business income or other monetary loss, then this could work in favor for the tenant. Saving emails from your supervisor, pay stubs or any evidence of collecting unemployment compensation may be helpful, even though unemployment compensation may indicate a tenant’s ability to pay rent.

The lasting Repercussions

Even if the tenant’s case is dismissed, they will still have an eviction filing on their record, which could make funding for housing in the future very difficult. Orange County is working hard to create a diversion program to stave off the tidal wave of evictions, and Mayor Jerry Demings said that a plan is set to be presented to commissioners on Tuesday, August 11th. No details on how the plan will work were given, but in the meantime, landlords and tenants will have to survive in a situation that excludes easy answers. Our recommendation is that you have a plan, and paperwork to provide legal foundation for your plan. When hardship arises and you feel you have been treated unfairly, our lawyers will be there to help.

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dog

Emotional Support Animals & Community Association Rules: What Does the Law Say?

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Many Community Associations adopt rules and restrictions to limit pets within a community. When purchasing a home, this can be especially appealing to those who suffer from allergies, those that have animal phobias, or those who just simply dislike animals in general because of the noise they make or the mess they sometimes leave behind.

However, it has been well established that service animals, “trained to do the work or perform a task for an individual with a disability, whether physical, sensory, intellectual, or other,” cannot be kept out of a community based on a Community Association’s “pet restriction policy.” This is because the Fair Housing Act, which was adopted in 1968, was modified in 1988 to include persons with disabilities as a protected class. In summation, the Act states that no person can discriminate against another with a disability when renting, buying, or selling a house. Since the service animal is an accommodation for the disability, not allowing the animal would be considered discrimination. Also, since the Fair Housing Act is a federal law, this law supersedes any rules and regulations or any restriction within the declaration of the Association.

THE DIFFERENCE BETWEEN A SERVICE ANIMAL AND AN EMOTIONAL SUPPORT ANIMAL

The next question to consider is if there is a difference between a service animal and an emotional support animal. The answer is yes! Service animals require a high level of training and are typically trained to provide specific tasks for their owner. Emotional support animals on the other hand do not require any specific training. Their sole purpose is to provide, as their title suggest, “emotional support.” Service animals are easy to identify as they tend to be dogs and perform very specific tasks such as seeing eye dogs that provide guidance for the blind. However, with emotional support animals, Community Associations continue to see an increasing number of owners who claim to need emotional support animals with no outward demonstration of a need for support nor the animals demonstration of anything other than being a household pet.

This has left most Associations asking the quintessential question, “what criteria do we use to validate any claim from an owner as to the need for an emotional support animal or animals in some cases?” This is a difficult question to answer and has become a much-abused provision of the law in recent times.

THE AMERICANS WITH DISABILITIES ACT

But we are not without any legal support. The law does provide Associations with some guidance.  The Americans with Disabilities Act limits support animals to dogs and miniature horses. The law also imposes penalties for false claims, although we do warn Associations that it is very difficult to prove such a claim. Associations can also require supporting documentation from an authorized physician or therapist stating the need for the animal. The law protects an individual’s right to privacy as to their specific disability but does not prevent an Association’s right to request proof of the need for an emotional support animal or the need for multiple animals if the case presents itself. The Association can also adopt reasonable rules that the owners must follow so that these animals do not interfere with the peaceable enjoyment of the community by the rest of the residents. For example, one such rule could include that all emotional support animals must always be on a leash when outside an owner’s residence or fenced in yard. Another rule could be that all owners are responsible for picking up after their animals and properly discarding all animal waste.

NAVIGATING THE FINE LINE

There is no denying that animals definitely provide therapeutic healing for those who need it. However, more often than not, we have seen many owners try to get their pets into communities that have “no pet” polices under the guise of them not being a pets but rather emotional support animal with a certificates printed off the internet. This has, in turn, created a very negative connotation and atmosphere surrounding emotional support animals.

As a community, we cannot let the selfish acts of some affect the true medial needs of others. So, Associations can arm themselves by knowing the laws regarding emotional support animals, require owners to provide proper documentation and implementing reasonable rules and regulations for emotional support animals within your community. This will allow those who truly need the support of a fury friend to receive the aid they need and hopefully deter others from violating the laws and instead choose to live in a pet friendly community instead.

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