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Do Not Steal Photographs from Google

One of the most common delays in building websites for small businesses is finding the right content, especially the right photographs to tell the story of the business.

For most small businesses, the amount of time and the costs of hiring a photographer, developing a shot list, and then combing through dozens of proofs just doesn’t seem like a good use of time.

Instead, the staff turns to Google and finds the perfect shot that truly amplifies the text on the page. It’s easy to pull from the Internet – just right-click and save the image.

It seems harmless. After all, the business owner isn’t selling the image or putting it on merchandise. It is just being used to showcase an idea.

But even using just one copyrighted image can result in fines up to $150,000, plus other penalties.

The attorneys at The Orlando Law Group can help defend you in a copyright case or help prevent others from using your copyrighted material.

What constitutes a copyrighted image?

Frankly, the assumption should be that just about any image cannot be used without permission from the owner.

The images in a Google search? Yes, those are copyrighted unless specifically marked.

The images you find in a promotional email? Yes, they are copyrighted.

The images on Instagram that a customer takes of your business? Yes, they are copyrighted.

Donald Trump’s Georgia mug shot? Yes, the Fulton County Sheriff’s Office owns it, although they are obviously not enforcing it.

The images your friend posts on Facebook? Yes, they are copyrighted too!

Again, virtually every image you see online has the assumption of being copyrighted.

To be clear, the images do not have to be registered with the government to be copyrighted.

According to the U.S. Copyright Office, “Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.”

The only exception as to if an image is copyrighted is when an image’s copyright expires and becomes a part of the public domain. This does not happen very often, however, and you can learn more about this in our blog post about how Steamboat Willie is now part of the public domain.

What happens if you use a copyrighted image?

If you use a copyrighted image, the penalties can be significant.

In most cases, if you use a copyrighted image, you will probably receive a cease-and-desist letter, asking for the image to be taken down. And in most cases, reputable businesses will take it down.

Of course, that is the best-case scenario.

Sometimes, however, the person who owns the copyright may want to make your case an example so others don’t follow suit. Other times, the copyright holder may be a small business too, often a photographer whose entire business is based on selling photographs.

In that case, you can be sued for using copyrighted images and the consequences can be severe.

Just in fines, you could be looking at a minimum $200 fine for each image used with a maximum fine of $150,000.

Your website could be impounded, taking away one of your greatest tools to market your business.

You can be forced to pay for attorney fees.

Finally, you can also be forced to pay damages if it is proven that you earned any revenue from the use of the image. While that is usually formed with merchandise using copyrighted images, it could also be construed that your website delivered revenue to your business.

How to avoid using copyrighted images

The easiest way to avoid using copyrighted material is to hire a professional photographer. In that case, the photographer is providing you with photos that you paid to have the rights to. You can use these photos as you see fit.

If you are in a rush and need an image to reinforce your brand, then you can turn to a stock image site and purchase the images for your use. You are purchasing a license, and you must follow that license, but you can use it for most purposes – and they are exclusive to your business.

Some of the more popular stock image sites are iStock and ShutterStock. Plus, if you use Adobe products like Acrobat and Photoshop, the company has a large collection of images to use in its stock photo library.

In these cases, you will need to pay a fee to use them, and other businesses can buy the same image, but you will not get sued for using them.

There are some free stock image sites too, just make sure there is no fine print restricting use. For instance, some stock image sites offer photos to be used for personal use, but not for business use.

In the case of images used on social media by friends or customers, it’s always best to just ask them in writing if you can use the image. In most cases, the customer and friend will agree to let you use them.

What is someone is using a photo I took?

In nearly every case, it will take the use of an attorney to help stop copyright infringement. From the beginning, a cease-and-desist letter from an attorney will have a greater effect on a business owner than just a random email.

Plus, it can be sent certified, confirming the company received it.

The attorney can also help determine if you should sue for damages, especially if the photo was used in a way that damages your brand or was used for revenue production by the other company.

Finally, the attorney can help guide you to an applicable law enforcement agency if there are criminal implications to the assumed copyright infringement.

The attorneys at The Orlando Law Group help business owners dealing with copyrights in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

 

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Need A Real Estate Attorney

Scary! A Nearly $2 Billion Judgment Against the National Association of REALTORS® on Halloween

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While we’re still a long way away from a final ruling, a federal court in Missouri has ruled the National Association of REALTORS® and most major residential real estate brokerages are in violation of the Sherman Anti-trust Act, one of the oldest laws ensuring a free market in the United States.

The punishment? Damages of $1.79 billion.

In a nutshell, the courts determined the National Association of REALTORS®, along with companies like Re/Max, Century 21, Keller Williams and more, squashed competition by forcing any real estate agent who wants to use the MLS database must use their rules for commission payments. According to the ruling, this prevented free market competition and eliminated any negotiations on who pays commissions and how much they are paid.

The attorneys at The Orlando Law Group work with local real estate agents and their teams on a wide range of services, including contracts and closings. This is a subject we are watching closely as it could rework how real estate agents are paid.

The Basics of the Class Action Suit

In 2019, a group of people who sold homes in Missouri sued the National Association of REALTORS® and the real estate companies, saying the group has agreed to “adopt, promote, and implement anticompetitive rules through the association’s governance.”

By having an association that prevents members from allowing their associates to compete with one another for commissions, and by agreeing to follow and enforce these anticompetitive rules, the National Association of REALTORS® acted to further its implementation and enforcement.

The main arguments from the plaintiffs included:

  1. The MLS is controlled by local associations, and access to the MLS is conditioned on brokers agreeing to follow all mandatory rules set forth by the National Association of REALTORS®.
  2. The National Association of REALTORS®’ policies restrain competition in the real estate market. This restraint forces the sellers to pay the buyer’s agent commission that, in a competitive market and were it not for the association’s anticompetitive restraint, would, or could, be paid by the buyer.
  3. The “Adversary Commission Rule” which is a policy of the National Association of REALTORS®, effectively requires the seller to predesignate a commission for the buyer’s agent, and further limits the ability to negotiate that commission amount.
  4. Since the MLS requires the seller to list a commission percentage, this provides the buyer’s agents the opportunities to selectively show clients properties the agent deems to be” worth their time.” This places sellers who choose to pay less in commission in a disadvantageous position, as the buyer’s agent usually gives priority to showing homes that pay a higher commission, and selling brokers are incentivized to provide a higher buyer broker commission to comply with NAR’s mandatory rule.
  5. Failure to abide by the MLS and association rules can lead to expulsion from the National Association of REALTORS® and access to the MLS, which restricts real estate agents who are not REALTORS® from listing properties on the centralized database.

Overall, the plaintiffs argued if these rules didn’t exist, buyers and sellers would be free to negotiate amongst themselves regarding the amount of commission paid. This would make the market more competitive and would likely drive down the prices paid to agents to lower commissions.

Additionally, it would cease the requirement that the seller pay the buyer’s agent’s commission.

Essentially, the association’s policies contribute to fixed commission prices, regardless of the individual factors of each sale at levels that would not exist in a competitive marketplace.

What is the Sherman Anti-trust Act

The Sherman Anti-trust Act was passed in 1890 and was the first law in the United States prohibiting monopolies. At the time, many companies had formed that dominated industries. These companies had no competition and, thus, drove prices significantly higher than a free market would allow.

Since that time, there have been many high-profile cases where monopolies have been broken up, like General Electric, Standard Oil and AT&T. Perhaps the highest profile case is Major League Baseball, which has been able to defeat any push to call them a monopoly.

The purpose of the Sherman Anti-trust Act is to preserve free and unfettered competition in the marketplace and that competition produces the best allocation of our economic resources, the lowest price, the highest quality, and the greater material progress.

To establish that any defendant violated Section 1 of the Sherman Anti-trust Act, the plaintiffs were required to prove:

  • a conspiracy existed to follow and enforce the Cooperative Compensation Rule in the subject MLSs,
  • the Defendants knowingly, voluntarily, and intentionally joined in the conspiracy,
  • the conspiracy had the purpose or effect of raising, inflating, or stabilizing Broker commission rates paid by home sellers,
  • the conspiracy caused the class plaintiffs to suffer injury to their property.

Here is an example the plaintiffs used to show how they believed the National Association of REALTORS® violated the act. In their Code of Ethics, Standard Practice, 16-16, “REALTORS®, acting as subagents or buyer/tenant representatives or brokers, shall not use the terms of an offer to purchase/lease to attempt to modify the listing broker’s offer of compensation to subagents or buyer/tenant representatives or brokers nor make the submission of an executed offer to purchase/lease contingent on the listing broker’s agreement to modify the offer of compensation.”

What does this mean for real estate agents and for you?

While this case is pending final resolution through the appellate court, and possibly even the Supreme Court, it is unknown how this case will affect the day-to-day real estate operations and what could happen to the real estate industry, but it could have drastic impacts. However, knowing what the exact effects are will likely take a few more years.

The attorneys at The Orlando Law Group can help real estate agents in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

 

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No Easy Way to Protest a Losing Proposal

No one likes to lose a big contract, but it has happened to every company providing goods and services to other businesses and governments.

For contracts with private businesses, there’s very little recourse. After all, a private business can choose to do business with whomever they would like.

When it comes to government contracting, however, it is a completely different story. The government is spending tax dollars – your money – and there are pages and pages of rules and regulations as to how those agencies must spend those dollars.

Many are spending millions, even billions, of dollars every year on all types of goods and services from cybersecurity protection to toilet paper.

That is at the local and state level. The federal government can authorize more than a trillion dollars in contracted spending in one indefinite-delivery/indefinite-quantity contract.

Government contracts can positively impact a company for years to come, which is why so many companies focus on them.

While a company can rebound from losing a government contract, it still can cost thousands of dollars to put together a proposal or bid for a government contract.

If a business feels like the process was flawed or the award was in error, there are steps the company can take, but it’s detailed and difficult, and it may cost more than the company spent on the proposal in the first place.

The attorneys at The Orlando Law Group can help you. Our firm specializes in business and contract laws and can help any business looking to protest an award from local or federal governments.

What can you protest?

Technically, a business can protest whatever you would like. That said, filing frivolous protests is a waste of money. Plus, while the agency certainly cannot overtly use a past protest against you in a future solicitation, it is human nature to remember a frivolous protest.

So first, start with who can file a protest. Not everyone can. In most cases, you must be affected by the decision because you were a part of the bidding process.

At the federal level, you do not have to bid to protest and can file a pre-award protest. Those protests are usually because the proposal or bid was written in a way that was confusing or did not directly. For instance, the Government Accounting Office gives these examples:

  • allegedly restrictive specifications
  • omission of a required provision
  • ambiguous or indefinite evaluation factors

Most local governments look for protests after the bid is opened and an intent to award has been given.

But, there is often no set outline saying this is what you specifically can protest, but generally you’re looking for things like the ones the federal government initiated plus acts like:

  • a violation of Sunshine Laws or improper lobbying by the winning company.
  • An ineligible company winning the bid.
  • A part of the process that was overlooked or skipped.

In one of the more high-profile bid challenges this year, one of two bidders for a new city marina in West Palm Beach protested.

The company, Safe Harbor, alleged the mayor’s vote on the proposal was illegal as the city’s ordinances give the mayor a vote only in the event of a tie with a vote at the city council. In addition, the company claimed the winning company improperly lobbied city contracts after a news article showed the council received nearly $50,000 in campaign cash from the winning company.

The results?

The protest was tossed out because Safe Harbor did not follow the rules of the protest, filing it after the deadline.

How do you protest a bid?

Here’s where it gets very complicated because there is no set answer on how to protest a bid or request for proposals. Nearly every government is different.

For instance, as part of the process, Orange County Government requires the following:

“The protesting party shall mail a copy of the notice of protest and the formal written protest to all other bidders and to any person with whom he/she is in dispute and shall provide the chief of purchasing and contracts with evidence of such mailing.”

Just across the county line, Seminole County Government does not require companies to do that. However, it does require this to happen:

“The bidder has the responsibility to contact the County and request the award recommendation results. The failure to contact the County for the award recommendation or recommended ranking results to determine if a protest is warranted will be considered lack of due diligence.”

Then there is the question of how quickly you must file an intent to protest. In both Seminole County and Orange County, the timing is the same. You have until 5 p.m. on the fifth day after the award recommendation is filed.

According to the state’s Administrative Code, a bid protest with any of the state’s agencies must be done within 72 hours after the award or the intent to award is posted electronically.

With federal contracts, it’s even more confusing because you are allowed to protest a bid before the award. In that case, the rule is 10 days after a company should have known about the defect in the competitive solicitation. After an award is announced, companies wishing to protest must request a “debrief” meeting and will have 10 days to protest after that meeting.

As perhaps the largest contractor in the world, the United States government publishes a 71-page booklet to guide protests, it can be that complicated.

The timing is just one of the issues to examine before filing a protest against. Some solicitations require a “protest bond,” meaning you have to pay to protest.

Even with all of these publications linked in the article describing the process, any singular solicitation can vary from these rules. And the courts are constantly looking at these rules, meaning they can change at any given time.

Just this past summer, a federal appeals court overruled past decisions and changed who was eligible to file a protest with the federal government.

If you think you might want to protest a decision by any government agency, it is imperative you reach out to the attorneys of The Orlando Law Group as quickly as possible.

We understand government contracting and can help you with any potential protest you might have.

The attorneys at The Orlando Law Group help business owners in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

 

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Lessons for Small Business on Taco Tuesday

Over the summer, there was a very public battle over the phrase “Taco Tuesday.” Lebron James wanted the phrase. Taco Bell wanted the phrase. Restaurants around the country wanted the phrase.

Of course, the owners of the trademarked phrase “Taco Tuesday” didn’t want to give it up and had fought allowing others to use it for years.

Eventually, Taco John’s, which had a trademark on the phrase for decades, decided to release the trademark without a fight and now Lebron James, Taco Bell and your neighborhood food truck can use it legally in most places.

While it is highly unlikely your company will develop a tagline or marketing phrase that becomes as common of a term as Taco Tuesday, it does serve as an important lesson for any business: protect your marketing just like you would a trade secret, an invention or a unique differentiator.

Not doing so can cause a business significant issues in the future, ones that could be easily avoided.

The attorneys at The Orlando Law Group can help you. Our firm specializes in trademarks and copyrights and a host of other business issues.

Why couldn’t we have Taco Tuesday a year ago?

Taco Tuesday seems like it has been part of our vernacular for as long as we can remember. It just makes sense and sounds like the perfect phrase that just rolls off the tongue.

That’s exactly what Taco John’s thought too when they first used it in a marketing campaign in the early 1980s, first calling it Taco Twosday and then using Taco Tuesday. The goal was obvious, by offering two tacos for 99 cents, the company figured it could increase business on a slow day.

It worked and in 1989, the company filed and received a trademark for the phrase Taco Tuesday.

Taco John’s, based in Wyoming, continued to grow over the years and currently has around 400 locations. But the phrase Taco Tuesday grew even faster. The company did as it should, which was to fight the use of the phrase vigorously, but in 2019, Lebron James tried to file a trademark for Taco Tuesday, but was rejected as the term was described as commonplace by the federal government.

That opened the door for Taco Bell to file a lawsuit to cancel the trademark earlier this year. Taco John’s chose not to fight and gave up the trademark.

Of course, Taco Bell used the fight for marketing too, saying they were just getting the term freed for everyone, even creating a FAQ for their actions.

It is not just about generic terms

Companies losing a trademark are well known. After all, we all take aspirin, use an escalator and we all rented a videotape at one point. Each of those terms was once trademarked but became generic terms eventually.

Honestly, the odds of anyone creating a marketing term that turns into a generic term are very low. It rarely happens.

One of the interesting things about Taco Tuesday is a group of Mexican restaurants found multiple uses of Taco Tuesday before Taco John’s 1989 trademark applications. Several companies, including Taco Bell, used the phrase as early as 1966 but did not trademark the phrase.

But Taco John was not the first to get a trademark for Taco Tuesday. That went to a small restaurant in New Jersey, which started Taco Tuesday in 1979 and received the trademark in 1981. They have kept the trademark in New Jersey ever since and have fought to keep it.

They have sold more than two million tacos over the years and market itself as having the “original Taco Tuesday” which is one of the reasons they remain in business today.

Over the years, they fought their competition in New Jersey successfully. After all, when someone sees a business with lines out the door, there will be an attempt to replicate it.

Today, that restaurant is still fighting Taco Bell and still owns the rights to use Taco Tuesday in New Jersey.

It is about your competition.

Both Taco John’s and the New Jersey restaurant show why any business should trademark the terms and slogans they use.

If a business does not protect itself and has a successful promotion, it will be copied to some extent by its competitors. Without a trademark, a business will have no recourse. With a trademark, a business can force the competitor to stop the infringement quickly.

And if the competitor does not stop using it, the courts can order significant damages.

How to trademark your marketing slogan

Even though there are thousands of trademark applications filed every year, it is stunning that more businesses do not file for trademark protections on their marketing slogans.

Start early as it may take a year or more for final approval. Most of the time is used so that anyone can have a chance to say why a trademark should not be used or to claim the trademark themselves.

The U.S. Patent and Trademark Office has a great summary of the process, but, as you will see, it can be extensive.

The only reason the New Jersey restaurant received the trademark was because an attorney worked with them on the process. They admit they did not have the time to handle the trademark process.

The Orlando Law Group has helped businesses with trademarks for years. We have a great article overall on the process here and another one about the use of Steamboat Willie here.

If you think you need trademark assistance, please reach out to the attorneys of The Orlando Law Group as quickly as possible.

The attorneys at The Orlando Law Group help business owners in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

 

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Follow the Law When it Comes to Public Records

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Recently, a South Florida condominium association lost another court case in a long-running battle to keep its financial records from being inspected by a resident and her attorney.

Frankly, this is a case that should have never been filed as state law is clear. Nearly all records of a condominium or homeowner’s association are public records for residents of the association. It’s been in state law for more than a decade.

But in this case, it appears the leadership of the Boca View Condominium Association let their emotions and mistrust lead the way instead of the law.

The result?

The association is facing a nearly $300,000 bill for the resident’s legal fees.

Plus, at the hearing in October, according to the South Florida Sun-Sentinel, the “judge sanctioned Boca View and its attorneys for filing a federal lawsuit that was ‘factually and legally frivolous,’ and ‘filed in bad faith based on a legal theory with no reasonable chance of success, all for an improper purpose.’”

The attorneys at The Orlando Law Group specialize in association management laws and can help you or our association with records requests and much more.

What happened at Boca View?

According to the Sun-Sentinel, the case started in 2019 when one of the unit owners sent a written request to inspect and photograph the financial records of the association. When she showed up to inspect the records with her attorney, the association’s treasurer refused to turn over the records.

There was no explanation given as to why they were refused, but the assumption was the unit owner was asking for the records on behalf of another person, who had been refused records prior because they were not owners of the association anymore.

From there, the unit owner took all the appropriate steps, including filing a complaint with the Florida Department of Business and Professional Regulation, which ruled Boca View broke the law and the records were to be turned over.

In response, Boca View filed a complaint in state court to block the records from being released. The association lost that suit but appealed the decision. It then filed in federal court, claiming the circuit court ruling was in violation of the Contracts Clause of the U.S. Constitution.

Confused? It’s been quite the maze of legal actions to prevent a resident from looking at the financial records of their condo association.

What does the state law say?

The Orlando Law Group published a Complete Guide to Records Retention for Associations in 2022 that is very comprehensive. In that guide, all of the pertinent statutes about records are listed.

The statutes are very clear on financial records. Here’s what  Florida Statute 720.303(4)(j) says:

The financial and accounting records of the association, kept according to good accounting practices. All financial and accounting records must be maintained for a period of at least 7 years. The financial and accounting records must include:

  1. Accurate, itemized, and detailed records of all receipts and expenditures.
  2. A current account and a periodic statement of the account for each member, designating the name and current address of each member who is obligated to pay assessments, the due date and amount of each assessment or other charge against the member, the date and amount of each payment on the account, and the balance due.
  3. All tax returns, financial statements, and financial reports of the association.
  4. Any other records that identify, measure, record, or communicate financial information.

According to our guide, “The official records of the Association may, based on Florida statute, be requested by a parcel owner for inspection or photocopying. Requests for records must be sent in written form by certified mail, return receipt requested.

“This request must be fulfilled within 10 business days after receipt by the Board or its designee of a written request. Associations can also comply with this requirement by having a copy of the official records of the association available for inspection or copying on the condominium property or association property, such as at the community clubhouse, or the association may offer the option of making the records available to a unit owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request.

“The official records of the Association may be requested and inspected by any association member or the authorized representative of such member at all reasonable times. This right includes the right to make or obtain copies, at the reasonable expense, if any, of the member.”

While there are exemptions to this statute, it’s clear what associations must do with public records: Let its residents inspect records.

Contracts Clause of the Constitution

There is a saying that anyone can sue anyone, but that’s not true. The courts can take action against frivolous lawsuits. And that’s what they did here.

After the lower court ruling, Boca View said the Constitution’s contracts clause should protect them. That clause basically says the government cannot pass laws that affect a contract between private parties.

Boca View said their covenants were written in 2004 and since the public records laws in question were passed in 2010, the association would be exempt as the state’s action affected a contract between private parties.

However, there was an even earlier statute that said the legislature could pass laws that amend laws governing non-profits at any time. This was passed before the Boca View covenants were developed.

Boca View hoped the federal court would throw out the state ruling, but the opposite happened.

There still is an appeal in the state court ruling being heard, but we believe that any association should be prepared to allow its residents to inspect records at any time to avoid costly lawsuits in this realm.

The attorneys at The Orlando Law Group can help association boards in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

 

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Be Ready to File Your BOI – or Go to Jail

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Next year, the federal government will be requiring businesses to increase the amount of reporting it provides. It is a new step that may catch businesses off guard as many businesses may not have even heard of the new types of disclosure.

But, if you own, invest or work for a small business, be ready to file your Beneficial Ownership Information to the federal government in January. Not doing so could result in significant fines and possibly jail time.

That sounds scary, right? 

It can be, but for most businesses, the actual act of filing this newly required information can be simple. Where it gets complicated is if your business is required and who you must disclose to the federal government. 

The attorneys at The Orlando Law Group can help businesses determine if they are required to file its Beneficial Ownership Information and file all the required documents for you.

Why do businesses need to report its Beneficial Ownership Information?

For most businesses, there is significant reporting required to publicly show the ownership of a business. 

For instance, a major company like Walt Disney Co. is publicly traded and all of its ownership information is accessible and public. A small investment firm files with the Securities and Exchange Commission. A non-profit organization files its ownership information with the Internal Revenue Service in its form 990.

Small businesses, for the most part, do not have to file this type of information with the federal government.

That is why, in 2021, the federal government passed the Corporate Transparency Act, hoping to provide more tools for law enforcement to find terrorists, money laundering, counterfeiting and more.

Yes, just like how we take off our shoes at the airport because of an act of terrorism, law-abiding small businesses will now have to file additional information with the government because of criminals. 

Who needs to file Beneficial Ownership Information?

If you are a small business with fewer than 20 employees and annual revenues less than $5 million, you most likely will need to file. 

There are 21 specific exemptions, like companies in the investment and financial realms. Most organizations who file as a 501(c) with the IRS are exempt. And large businesses are exempt.

For businesses that have multiple LLCs, such as a real estate firm that owns multiple properties or a restaurant group with each location a separate entity, this could mean filing a separate Beneficial Ownership Information for each one! 

Basically, if you have to file each LLC with SunBiz or any other Secretary of State, then each LLC needs to file separate Beneficial Ownership Information.

What needs to be included in the Beneficial Ownership Information? 

This is where the issue becomes complicated as the government is requiring small businesses to report anyone who has “substantial control” or “ownership interest” in the business.

The ownership interest is strait forward. Does an individual own 25 percent or more of a small business? If so, that person needs to be included in the Beneficial Ownership Information.

As to substantial control, in most businesses, this will include nearly everyone on the executive team. Specifically, the government says the following are required to be included:

  • The individual is a senior officer (the company’s president, chief financial officer, general counsel, chief executive office, chief operating officer, or any other officer who performs a similar function).
  • The individual has authority to appoint or remove certain officers or a majority of directors (or similar body) of the reporting company.
  • The individual is an important decision-maker for the reporting company.

The last bullet is where it gets complicated and will need to be a judgement call on the business owner. If someone in the business has any authority with finances, structure or business lines, they need to be included. 

What happens if a business does not report?

Here is where it gets scary. According to the federal government:

“The willful failure to report complete or updated beneficial ownership information to FinCEN, or the willful provision of or attempt to provide false or fraudulent beneficial ownership information may result in a civil or criminal penalties, including civil penalties of up to $500 for each day that the violation continues, or criminal penalties including imprisonment for up to two years and/or a fine of up to $10,000. Senior officers of an entity that fails to file a required BOI report may be held accountable for that failure.”

Keep in mind, this is not like filing with the State of Florida, where the fine is relatively small for not filing. This is an effort of the Financial Crimes Enforcement Network division of the United States Treasury. 

These are the people who spend every moment looking for criminals breaking the law to protect us. 

While the federal government says, “willful failure,” that term could apply to your actions if you “forget” to file or do not realize you need to file. It is still to be determined how that will be treated. 

It is certainly not something any business would want to be the test case for. Plus, pay attention to that last line of the government’s warning that says senior officers of the company can be held personally accountable for a failure to file.

When do we file our Beneficial Ownership Information?

For the first year, any existing businesses have all of 2024 to file its first Beneficial Ownership Information. 

However, if you form a new company after January 1, you will have just 30 days to file your information with the federal government. 

The attorneys at The Orlando Law Group can help your businesses prepare for this requirement as we understand business and represent clients in business law and more in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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Time to Adjust Your Payroll for Tipped Employees

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Recently, the Miami Herald wrote about a case against the Orlando location of Giordano’s Pizza that was brought on by the U.S. Department of Labor. The restaurant’s owners were accused of not paying their employees properly and was ordered to pay each worker $5,000, for a total fine of $125,625.

For a restaurant or any business, that is a significant fine that could result in the restaurant going out of business.

In that case, the Department of Labor accused the company of not paying its servers time and a half for overtime hours and of paying its servers exclusively in cash.

Both of these should be fairly standard for any businesses using tipped employees to do so, but on September 30, 2023, the numbers associated with tips and pay changed. It is important for you to review your payroll standards and ensure your business is complying.

The attorneys at The Orlando Law Group can help review your situation and ensure your business is following the often-confusing issues related to tipped employees.

How Tips Work

Anyone who dines at a restaurant understands the tips system for compensating restaurant employees. You pay more for your meal based on the quality of service you receive. In addition, it is assumed the cost of the meal is lower because the restaurant has lower labor costs.

But that 20 percent added onto the bill does not go to the server 100 percent. The server gives some to the bussers and the hostess. The bartender may get a portion and the kitchen staff may get paid out as well.

It can be confusing who is getting how much money and, often, nearly impossible to track. That is why the rules of tipping are set up to be based on a “tip credit” established by each state government.

Yes, there is a federal standard, but in many cases, states have higher minimum wages, which always supersede the federal standards and that is the case in Florida.

It is required that some of a server’s wages are not paid through tips exclusively. In Giordano’s case, the restaurant owners were found to have not paid 24 servers any pay except for their tips.

That is not allowed.

What is Florida’s tip credit?

This is where it gets a bit tricky. A few years ago, Florida voters passed a ballot initiative raising Florida’s minimum wage to $15 per hour. Understanding this would be hard on businesses, the new law allowed a gradual increase in the minimum wage until 2026.

The first increase was in 2021, and every year after, the minimum wage increases by $1 per hour. On September 30, 2023, the minimum wage in Florida became $12 per hour.

Of course, that is not the amount that employers are required to pay tipped workers. Florida law allows employers to take a “tip credit” of $3.02 per hour for any employee who receives tips.

That means restaurants and other tip-based industries must pay a minimum wage of $8.98 per hour, a dollar per hour higher than it was in September. And the next year it goes up another dollar, eventually resulting in a minimum wage for tipped employees of nearly $12 per hour!

What are the penalties for non-compliance?

Increasing expenses are always tough for any business, especially restaurants where the margins are always thin and food costs are extremely volatile. Just that one extra dollar per hour could be a tremendous burden for any business.

The alternative will be worse and you will almost always get caught.

Anyone who has worked in the restaurant industry understands employment is often very temporary and there are many opportunities for disgruntled former employees to cheerfully report any practice that does not meet the law.

Once the Department of Labor becomes involved you will have extra legal and accounting fees to prove your case or negotiate a settlement. Almost any fines imposed will include interest and penalties. Instead of paying an extra dollar an hour, you could be paying hundreds of thousands of dollars.

In Giordano’s case, there were only 24 employees at one location who were impacted and the company still had a six-figure fine. How many employees do you have? Is that a fine you could pay easily?

There is also very little defense. For instance, the Department of Labor said in the article Giordano’s blamed a third-party payroll company for a mistake. Unfortunately for the restaurant owner, the responsibility lies with them.

The attorneys at The Orlando Law Group can help you with wage cases like this, as our attorneys represent clients in the restaurant industry and other businesses in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

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What is the Purpose of the Letter of Intent

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You have been looking at buying a retail strip center for some time. It seems to be the perfect place to grow your real estate investments. It has a good base of long-term tenants and a lot of opportunities for out parcels that have not been developed yet.

The asking price on the property is too high for your budget, but you think you can get close. You could just give the person a verbal offer, but that may not be taken seriously.

Sending a letter of intent to purchase the property may be a good option to show that you are serious about the property.

With the letter of intent signed by both parties, you will have the basis of the sales agreement completed and serious negotiations on a contract can start.

Or the seller can look at your offer and reject it, allowing you to move on to another property.

While it is not the final contract, it is a legal document that can be binding, so it is essential you work with the attorneys at The Orlando Law Group to provide everyone the exact and terms of the negotiation, but also to give you protection if something unexpected happens or the seller was negotiating in bad faith.

What is the Letter of Intent

A letter of intent is well described by its name. It is a document that shows the intent of the signers to complete an action. For this article, we’re looking at a letter of intent for purchasing property. You could use one for a lease agreement as well, or to purchase a company too.

There is no set format to a letter of intent and it can have as little or as much as is needed to formulate the basis of a negotiation. The letter of intent can have many parts, but it can have any or all of the following elements:

  • The terms of the deal.
  • The proposed terms of a seller-financed deal.
  • The proposed date of the final sale or expiration date of the letter of intent.
  • Any needed items, such as financial documents or existing leases.
  • How the buyer will pay for the deal, including a deposit amount and loan company.
  • The responsibility for any legal fees.
  • Any broker fees and their amount.
  • An exclusivity clause to stop any other negotiations.
  • A confidentiality agreement.
  • Any contingencies that could end the deal.
  • Any penalties if the letter of intent is broken.

Why sign a letter of intent?

Frankly, you don’t need to send or sign a letter of intent when purchasing or leasing a property.

But it can be helpful.

As with most legal documents, you are signing a letter of intent as the seller or the buyer for protection. You want to make sure that when you invest a significant amount of time and money negotiating a deal, that time is not wasted if the two sides weren’t close to begin with.

With a letter of intent, you can gain some assurances. For instance, a key part of any letter of intent can confirm exclusivity for negotiations.

Think about it. You work to put the property under contract but find out the seller was using your negotiation to get more from someone else.

You can be protected from this with a letter of intent.

And if the negotiations do fall through for reasons not outlined in the letter of intent, you might be able to recoup some of your legal and other costs, if properly outlined in the letter of intent.

Finally, the letter of intent helps the buyer secure the financing. While the buyer should have already identified how they intend to pay for the property, it gives the bank assurances the deal is legitimate, giving it confidence to underwrite the loan.

Is the Letter of Intent Binding?

While the letter of intent is not an official “contract,” it can be binding even if a contract is never officially signed. In a lawsuit, it could be used to show the intent of both parties and will also provide the courts with the road map to what was agreed upon or not.

As with many areas of the law, the letter of intent may be binding – or not. For the most part, it is best to clearly define the parts of the letter of intent that is binding, if any, with very specific language.

Likewise, if you do not want to be bound by the terms of the agreement, you should also signify that with very specific language too.

The courts have looked at letters of intent in a wide range of circumstances and there is no existing law that says all letters of intent are binding or are not. It really depends on the specific elements of each case.

While there are circumstances that could make a letter of intent non-binding, it should be assumed the letter of intent is like a contract and its terms can be enforced, so only sign a letter of intent if you are sure this is a property you want to buy or sell.

The attorneys at The Orlando Law Group can write or review any letter of intent and let you know what your options and the consequences of signing the letter of intent as our attorneys represent clients in commercial real estate and more in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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Government Approval for My Commercial Property

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One of the key roles of local government is approving what people build on their land. From zoning to permitting and inspections, a local government can be a great partner or your worst enemy.

For just about any type of commercial project an investor wants to undertake, government action will be required.

Time and again, investors in commercial properties can find themselves in protracted battles with the government without the proper due diligence on what will be needed to accomplish the investors’ desires.

You do not want to invest significant amounts of money or sign a binding contract without understanding everything that will need to be done with the property.

To be prepared, you need to work with an attorney who understands all the issues that come with land use and permitting to give you all of the facts and possible scenarios you need to know before investing in any commercial real estate.

Check the zoning!

At the heart of any government approval is understanding what the government will allow on a particular property. Every parcel in the United States is zoned for something, a church, a single-family home, a warehouse or more.

In many cases, the zoning is not obvious. For instance, most people have driven by a piece of land with one or two cows on the property. Around the land on adjacent properties are hotels and shopping centers in this case.

The land with the cows may be very attractive to purchase for a commercial real estate investor, but the investor must understand the government will need to approve a zoning change from agricultural to a designation that allows them to build what they want.

That change will usually be smooth – after all, a new shopping center will provide significantly more tax revenue for the government than a cow pasture. Plus, because all the adjacent properties are commercial, there are relatively few detractors.

Still, there are multiple boards to approve the change and the investor will still have plenty of preliminary work to do on the legal and engineering needs of the process.

But what if that vacant land was surrounded by neighborhoods and you want to develop a small 24-hour urgent care center on the property? That is going to be significantly more effort, more legal work and higher costs as the neighbors decide they want to keep their cow pasture and decide to fight the approval.

Now, that investor will need to pay for those engineers and attorneys to spend more time on the project. The investor may need to hire a lobbyist and perhaps a public relations firm.

All of that should be taken into account before the investment is made.

Zoning can also play into leases as well. There may be some restrictions on zoning preventing you from operating the business you want to operate. Once you sign a lease, you will be responsible for paying lease payments – even if zoning will not let you open.

The attorneys at The Orlando Law Group have a unique understanding of how zoning can affect properties and can alter plans for a commercial real estate investor and can help guide you to how long and lengthy it may be to ensure your zoning is correct.

How long does permitting take?

Have you read every line in your lease or your sale agreement carefully? After all, there are often phrases in every lease that could cause an issue.

One of the key phrases, particularly in a tenant build-out, is “build-out to be completed by ___ days after execution of the lease.”

If you miss that deadline because the government runs slower than you might think, you will be in violation of your lease.

The Orlando Law Group works with businesses throughout Central Florida and, to be clear, there is very little rhyme or reason on how long it can take to get a building project permitted.

In unincorporated Orange County, there are more than 100 different kinds of permits you might need. Just for a commercial building permit in Orange County, there could be more than a dozen different forms to fill out. There are four different permits for types of tree removals in Orange County.

Every city in Orange County has different forms, different permits and different processes.

Making things even more complicated is how cities and counties control land use is often disjointed, resulting in different processes, procedures and timing for permitting for buildings across the street from each other.

The good news is that, in most cases, governments want to work with you to approve permits. They understand holding up permits prevents investment; it reduces jobs and keeps eyesores or empty lots on the tax rolls. But it still takes an expert to work through the approvals and make sure there are no issues.

Plus, it is always best to fully understand what is needed before purchasing a property or even signing a lease. Not fully understanding the permitting process could cost any investor a lot of money.

Inspections: the last step.

After construction is finished and you are ready to open your business, the government sends in an inspection team to ensure everything built matches what was approved.

While this may sound easy, it can often be the most frustrating part of the process in opening your business. After all, your new business looks complete, the fixtures are all in, and the furniture has been delivered.

All you need is the government’s approval, but the fire inspector finds fault with the placement of the emergency exits. They are too high by three inches.

For the most part, you will need to fix the issue before receiving the final approvals, but by working with an attorney, who understands the process and has worked with the government officials, there can be ways or methods to help speed up the process.

For instance, the government could order a temporary certificate of occupancy, where the business can open, but must fix the issue quickly. This is not available all the time but can be looked at on a case-by-case basis.

The goal for everyone is to get your investment or business operating as soon as possible, in a safe manner that is acceptable to the community around it. It may seem overwhelming, but with the right guidance and assistance, it can be stress-free.

The attorneys at The Orlando Law Group represent clients in commercial real estate and more in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

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Dirty land: a great deal or a big hassle

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One of the biggest stories in Central Florida in the 1990s was how the Orlando Sentinel was found to have contaminated the ground under a large swath of downtown Orlando.

For decades, the company had been sending chemicals from its printing presses into drains on the floor of the plant. Those chemicals traveled from its property at Orange Avenue and Colonial Drive, almost all the way to Lake Concord.

The main chemical, trichloroethylene or TCE, was extremely hazardous to people, with an extreme risk of causing cancer.

When the stories broke about this polluted flume of chemicals, the thought was that land would be impacted for decades and would probably be a black hole of development in the heart of the city core.

In fact, the property appraiser slashed the value of all property above the plume by 50 percent.

Today, the north downtown corridor has seen a significant rebound. There are restaurants and apartments, office buildings and small shops. It is a walkable community where businesses and residents thrive.

It also cost millions to clean up and was the subject of a years-long lawsuit to ensure the Sentinel took responsibility, forcing them to clean up the groundwater.

Even though the Sentinel stopped using TCE in 1982, the issue was not publicly known for years. No business wants to be known as a polluter, it is imperative to make sure you understand any issues that might affect the purchase of commercial land you intend to develop.

The attorneys at The Orlando Law Group can help you with any issues of contamination that might be found on a property you are interested in buying.

What type of contamination could be there?

It seems like there is an endless supply of chemicals and hazards that can be found on a site you might be interested in purchasing.

The Environmental Protection Agency says a contaminated property may be “from a variety of intended, accidental, or naturally occurring activities and events such as manufacturing, mineral extraction, abandonment of mines, national defense activities, waste disposal, accidental spills, illegal dumping, leaking underground storage tanks, hurricanes, floods, pesticide use, and fertilizer application.”

Plus, there are thousands of sites throughout the country that have been contaminated. In fact, there are several “brownfields” in Central Florida alone. But there is no tracking system for most of these lands, only the biggest and the worst of the sites. The only way you can know for sure that a dry cleaner in the 1970s was not dumping chemicals on your property is through your own due diligence.

If you don’t perform the due diligence and ensure a clean-up procedure before you buy the land, you’re liable for the contamination as well as the original owner once you use the property.

Hire an engineer.

When you look to purchase a building and plan to finance the purchase or the construction of a new building on vacant land, nearly all financial institutions will require an environmental study, usually just a “Phase I” study.

In this study, a licensed engineer will do a review of the property, going back 50 years to see if there is any reason to suspect some sort of contamination. This is more of a review of the history of the property and nearby businesses. The engineer will look at photos, insurance claims, property records and more.

If the Phase I study shows there may be a reason to think the land could have some issues, a Phase II study will be needed.

The Phase II study is significantly more comprehensive. It includes soil borings and underground water samples. The engineer will run extensive studies on the samples to determine if there is any contamination and how serious it possibly could be.

Depending on the results of the phase II study, a phase III assessment may be needed. This is the most extensive environmental study you can have. It should show the contamination in its entirety and will have a mediation plan to eliminate the issue, including the costs.

Cleaning up contaminated land is not a quick or easy process. If there are chemicals in the soil, the dirt is often trucked off-site to a cleaning facility and disposed of, often through burning. If the water is contaminated, it is a long process of replacing the contaminated water with clean water.

Hire a lawyer.

At this point, a decision will need to be made to determine who is going to pay for the clean-up of the contamination.

In some cases, it should be an easy call. For instance, the pollution in downtown Orlando started at the Orlando Sentinel’s printing facility and flowed downstream.

But, initially, the Sentinel blamed employees for disobeying disposal rules. It blamed an extermination company nearby. It denied any sort of responsibility.

It took seven years of lawsuits by property owners to get some relief – the Sentinel eventually purchased their property in a confidential settlement. The Sentinel also had relief come from the state and the city, which forced the Sentinel to pay just 60 percent of the cleanup of the area.

Since then, nearly $3 million was spent to clean up downtown. There were thousands of pounds of organic chemicals removed from the area and around 209 million gallons of water have been cleaned.

But do you want to purchase a property that could be tied up in litigation, if there is even a company or individual to sue to clean up? Can you recoup your investment in the cleanup through future revenues? Can you include clean-up in your purchase negotiation?

That is where The Orlando Law Group comes in. We are able to work through all of the legal analysis to determine how and where you might get relief. Our attorneys can provide you with a complete picture of the property you are interested in purchasing, so you can make an informed choice.

The attorneys at The Orlando Law Group represent clients in commercial real estate and more in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

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What the lease? A guide to renting space for your business.

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Every business owner remembers the pride they felt when the ribbon was cut on their new office or new location. All their friends and family, along with the local mayor and the chamber of commerce, came by to congratulate the owner on their accomplishment.

Getting to that point was not always easy and getting that space was often complicated, filled with terms that are very well known to realtors and institutional investors but are not common to most people.

After all, the closest thing most people have had with leasing property is the apartment they rented or the short-term rental agreement they signed when moving.

Most residential leases are straightforward. You agree to a rent payment and to maintain the property inside the home, and pay for renters insurance and utilities. The rest is up to the landlord.

That is not the case with commercial real estate, where you can sign a “triple net” lease, an “absolute” lease, a “step-up” lease, a “gross” lease or a number of other types of leases.

It is important you work with an attorney at The Orlando Law Group to ensure you fully understand the ramifications of the lease you want to sign.  Any type of lease has risk and reward and the attorneys at The Orlando Law Group can help you make the best decision for your business.

What are the different types of leases?

There are a multitude of types of leases, but it is important to understand the difference between the common types of commercial leases: single net, double net, triple net and absolute net leases.

In each of these types of leases, the difference is who pays what during the lease to operate and maintain the property. The most common of these leases is the triple net lease, where you will pay less on your lease payment, but more in the operations of your business.

In the triple net lease, your business will be responsible for utilities, taxes, janitorial, insurance, maintenance and much more. The payments will be bill separately and based on the percentage of space you lease in the building.

Sure, it sounds like a lot, but remember, the property owner took the risk in developing the property from leasing. As a user of the building, the thought is you will have responsibility in maintaining the property you are using.

If that sounds like too much to be responsible for, you can always look at a double net lease or a single net lease. These are not as common as they shift some of the responsibility to the property owner, but the owner may be amenable to those types of leases.

In a double net lease, you will pay for just about all the same items as a triple net lease, but the overall property maintenance will be the responsibility of the property owner. Things like landscaping and small facility repairs will not be part of your lease, but you will still need to cover taxes, utilities and other aspects.

In a single net lease, you are pretty much responsible for only your space. You pay rent and taxes and the landlord pays virtually everything else.

The reality of each of these types of leases is the more you pay for, the lower your lease payment. The fewer items you pay for, the higher your lease payment.

What are other varieties of leases?

Of course, as with any legal arrangement, there are dozens of different variations of the three types of leases.

Start out with the “absolute triple net lease.” This variation includes everything that a triple net lease includes, plus a contribution to major repairs on the building. For instance, if your shopping center needs a new roof or your office building needs a new HVAC, your business will be responsible for helping pay for those repairs based on the percentage of square feet you lease.

What if the next hurricane destroys the building? In most leases, the property owner would be responsible. But in a “bond” lease, you are on the hook to help rebuild the property. And if the building is condemned, you still have to make lease payments.

You could also try to negotiate a “gross” lease. It is like the triple net lease as to what it covers, but in this arrangement, everything is included in the singular lease payment, as opposed to being billed separately for taxes, insurance, property maintenance and more.

There are also “percentage” leases, which provide the property owner with a cut of the business profits. These are particularly common with restaurants, which take a bit of time to build a customer base. There are step-up leases, which automatically increase the lease payments over time.

If you want a custom building, you can also look at a ground lease, where you are responsible for building your location and everything that needs to be part of the facility. Of course, you need to make sure it is very clear what happens to your investment when or if the ground lease ends.

What type of lease is best?

There really is no “best” type of lease. All the established types of leases have their pros and cons and are dependent on your business. The goal of the property owner is to keep their investment filled with tenants and produce revenue. They are usually willing to work to find a lease arrangement that works for everyone.

That is why it is critical to work with an attorney on your commercial lease. Your attorney will understand what your long-term goals are for your business and will be able to negotiate to get you the best possible lease for your specific business.

The attorneys at The Orlando Law Group represent clients in commercial real estate and more in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

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Astroturf Your Backyard? The New Florida Law May Not Protect You

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One of the most iconic characters on television is Tool Time Tim’s neighbor Wilson. His sage advice usually guided Tim to make the right decision. While you never saw Wilson’s full face, he was always looking over the fence to talk to Tim.

Imagine one day Wilson looks over the fence to see that Tim, who certainly likes to build, has decided his back yard should be covered with Astroturf and changed into a miniature golf course.

While usually friendly to Tim, he certainly doesn’t like the thought of looking at a Putt Putt course when he talks to Tim.

In their neighborhood covenants, there is a prohibition on artificial grass, so Wilson complains to his board, filing a formal complaint against Tim.

Under a Florida law passed during the 2023 Legislative Session, it would appear that Tim has every right to keep the Putt Putt course.

Here’s the specific language of Florida Statute 720.3045.

Installation, display, and storage of items.—Regardless of any covenants, restrictions, bylaws, rules, or requirements of an association, and unless prohibited by general law or local ordinance, an association may not restrict parcel owners or their tenants from installing, displaying, or storing any items on a parcel which are not visible from the parcel’s frontage or an adjacent parcel, including, but not limited to, artificial turf, boats, flags, and recreational vehicles.

Sounds like an open and shut case, right? Tim gets to keep his golf course because it’s not visible without intentionally looking over the fence – like Wilson does every day.

Well, not so fast.

There are many other factors that come into play with this decision and many of them will need to be tested in court before any certainty can come for Tim and Wilson.

The Orlando Law Group has a significant focus on providing homeowner’s associations with all types of legal advice, including interpreting new statutes.

It’s in the Constitution!

While we’re sure that George Washington didn’t have an HOA contract covering Mount Vernon, Washington and the other founders did understand contracts and wrote language into the U.S. Constitution in Article 1, Section 10 that explicitly said government cannot write a law that breaks a contract – the Contracts Clause.

This is so critical to how we govern in America that similar language is in the Florida Constitution as well.

The covenants of any homeowner’s association are a binding contract. When a homeowner signs the contract, they agree to abide by the terms of the contract.

Often times, these covenants say a homeowner can’t install Astroturf instead of grass, or store items on their property as is the case with Tim’s neighborhood.

So, that makes it a slam dunk for Wilson’s case, right? The covenants say Tim can’t put in a Putt Putt course. The new law can’t interfere with contract, according to the U.S. Constitution.

Well, not so fast.

Tim may keep his Putt Putt course depending on how the contract was written.

Kaufman Language is Key

Overall, homeowner’s associations are governed by Florida Statutes 718 and 720, which really puts them at the whims of the Florida Legislature. What happens in a neighborhood across the state may have ramifications with everyone if the legislature sees a reason to change the statute.

Sure enough, the issue of Astroturf in a backyard started with a HOA in South Florida. There, a homeowner installed Astroturf as part of creating a “Florida-friendly” lawn. This term was part of a change to statutes a few years ago as the state tried to discourage the use of St. Augustine grass.

In that case, artificial grass was not stated in statute.

It is now.

In both cases, however, the key to finding out if they apply is a statement – called Kaufman language – that basically says the contract is subject to change based on actions of the Florida Legislature.

It should specifically state that “new laws and amended laws become part of that declaration automatically and do not impair it even if that new or amended statute creates a new obligation, imposes a new penalty and/or diminishes a vested right.”

If the Kaufman language is in the covenants Tim signed, the case is settled. Tim gets to play all the Putt Putt he wants in his backyard.

Well, not so fast.

Three Tests to the New Law

Unfortunately, Tim’s HOA didn’t use The Orlando Law Group to create their contract and the Kaufman language isn’t included. Now, it comes down to are three tests to determine if it is in conflict with the U.S. Constitution.

We will be publishing a full article on these, but the tests are:

  • The procedural or substantive test: Does the change to law substantially change the contract or is it just a procedural test? In this case, it’s substantive. The contract says you can’t have Astroturf. The new law says you can.
  • The retroactive/remedial intent test. Is the change retroactive, covering past actions. In this case, the bill did not cover retroactive, only that enforcement started on July 1, 2023
  • The degree of impairment test. Frankly, almost any substantive contract is viewed as impairing the contract. In this case, one could assume the new law impaired the contract.

Based on those tests, it still looks like Wilson wins, after all, the law appears to fail all three tests.

Well, not so fast.

In Florida, the courts look at new laws under a case from 1992 called Maison Grande. Under that ruling all new laws are presumed to be valid and enforceable until the courts say otherwise.

With that case, our opinion is Tim can keep his Putt Putt course for now.

Of course, that could change too. Tim’s association could certainly file a suit and be a test case, hoping to get the new statute ruled unconstitutional. There is certainly enough doubt for any association to become the “test case” if they want to.

The attorneys at The Orlando Law Group represent clients in association management and more in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

We would certainly work with any association who might want to test the new law and get a court ruling.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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property-law

Communicate with your community before it is too late

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Almost every day, some sort of dispute between an association board and its community makes the news somewhere in the United States.

Just recently, at a 55+ community in South Florida, news reports said hundreds of residents protested at a board meeting because the association board needed to raise its dues to pay for increased insurance costs.

The increase was $100-$200, but it was enough to activate the community.

That story made international news as police were brought out to control the crowd. And, while that case is extreme, much smaller disputes are common in most neighborhoods.

It is how the cases are handled that makes the difference between a discussion at a board meeting to come to a solution versus a prolonged, nasty public fight that brings home values down.

The key to solving community disputes is to be proactive before they ever start.

Communication is key in association conflicts.

In the South Florida case where condo owners protested an increase in dues, the changes to the dues were probably necessary.

It is fairly widely known that homeowners’ insurance rates in Florida are increasing substantially. More than a dozen insurance companies have pulled out of the state, limiting the market. Plus, an increase in strong hurricanes hitting the state has created billions in claims.

Add in the issues with condominiums in Florida after the Surfside collapse it should be expected that insurance rates for every condo building in the state would need an increase.

Of course, news reports do not talk about the steps taken before this happened, but the results of the announcement make it seem like they missed a critical step in any difficult decision: Communication.

Perhaps the single most important step in community disputes is to communicate effectively with the community. This should be done often, through a wide variety of tactics and comprehensively.

How to communicate

The first step in communicating is understanding there is no one place to communicate with everyone. Even social media is segmented into niches, so you cannot reach your entire community through Facebook or Instagram or Snapchat.

One thing that can help is to survey your community on how they would like to receive communications from the association board. Do they want text messages? Do they use NextDoor or do not pay attention to social media at all? Is an email newsletter sufficient or do you need to print one and deliver it?

Getting the answers to these questions and utilizing the results will bring you closer to the resolution of difficult decisions faster and smoother.

Address the issues before they become issues.

No one likes to be surprised. Most people can accept change if given time to understand why the change is being made and prepare for the eventual change.

Too often, changes in a community are sprung on the residents with little warning – or the warning was given to a limited audience, like discussed at a board meeting but not with the community.

Every community has issues that happen. For instance, too many people are parking on the street and the board agrees to start towing cars. Imagine if your teenager parks on the street and you wake up to find his or her car has been towed with “no warning.”

Now, the resident is mad, riling up other street parkers on social media and showing up at the board meeting threatening all sorts of lawsuits, bad publicity and voting the board out.

Instead of just discussing it at a board meeting, the association should have sent out a news article to the community about how residents’ lives are in danger if emergency vehicles cannot pass the cars on the street to show the problem.

The association could film garbage trucks unable to collect trash and share the videos on NextDoor and other social media platforms.

Then, the association could notify a public meeting on parking on the street to discuss solutions and put a form on the website allowing for public comment.

The board will need to listen and hear what the community wants, but when a change is made, the association can then take steps before enforcement. If there are issues, send out a letter to all residents about the change. And drop a postcard on a car windshield that is parked in the street.

There will still be some people who just did not listen, but it allows you to emphasize how much the association tried, which often limits other neighbors’ negativity.

Trust your professional team

There are many situations like this. When gates are hit by cars or malfunctioning, there are often issues that spark conflict. When aesthetic changes are made, like new signage or fences, you can work with people who are rarely satisfied by seeking their opinion in advance and giving them ownership of the idea.

Of course, any increase in dues paid to the association must be done carefully and with a widespread of understanding of the “why.”

To help identify potential issues, it is critical to lean into a board’s management company, its legal team and other vendors. In almost all cases, these companies work with a lot of communities and have seen communities address issues proactively or fight reactively.

They will be able to let you know if an issue might be difficult and what has worked in other communities to make the changes seamless or address issues proactively.

The attorneys at The Orlando Law Group represent clients in association management and more in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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Alimony-Tax-Deduction

New Divorce Laws in Florida

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At The Orlando Law Group, we certainly understand the stress, confusion and emotions that come with a divorce, particularly one that has alimony payments and child custody arrangements.

Unfortunately, many of the laws guiding Florida courts for decades have been upended this month. For more than a decade, there has been an effort to substantially overhaul these laws. Both Governors Ron DeSantis and Rick Scott have vetoed similar legislation in the past.

This year, however, the laws passed and this month, a slew of new laws took effect in Florida dealing with alimony and child custody.

While not retroactive, any new petitions for divorce will have these new laws apply.

If you are already divorced, these new laws could affect you too as there are new standards to petition the courts for a modification of your divorce agreement.

The big one that could see substantial changes in your agreement is the end of permanent alimony for any new divorces. For those receiving or paying permanent alimony, that could change in the future with new restrictions on retirement, outside support and other aspects.

If you are filing for divorce soon, alimony will be based on the length of your marriage and other factors, but it will now be required to end at some point.

As to custody arrangements, the court now takes the stance that co-parenting – a 50/50 split – is best for the child unless either side proves that not to be the case.

Keep in mind as with any new law, there will be court challenges and other actions to fix any issues with the law, so this could change.

But if you have a divorce agreement from a Florida court, it is imperative you reach out to The Orlando Law Group soon to review and see what your options are and how this new law might affect you.

The Orlando Law Group can help you with any family law issue that might arise, including ones dealing with alimony and child custody. Our full-service firm helps businesses and individuals in Orlando, Winter Garden, Altamonte Springs, St. Cloud, Kissimmee, Sanford and throughout Central Florida.

What is alimony?

In any divorce proceeding, the courts look at how to ensure individuals are not immediately put into financial stress through a divorce. This can come in a variety of forms, from a lump sum payment, a “bridge-the-gap,” rehabilitative and durational.

In each of those cases, there is a wide range of factors that determine the amount and the length of the alimony payments. Usually, without an agreement, the courts would set the length and cost of alimony, including sometimes making it permanent – only ending with death or remarriage.

No more permanent alimony

As of July 1, the new law completely eliminates all permanent alimony, now requiring an end date to the payments.

According to the previous statutes, “Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage.”

It was meant for couples separating from long marriages in most cases and it was viewed by statute as the last choice.

The alimony ended when the payee remarried or died, or if there was evidence of new outside financial support – generally living with someone – with a modification filing.

All of that is gone now. In Florida, there are now limits as to how long alimony can last. If you were married for three to 10 years, alimony can not exceed 50 percent of the length of the marriage; for 10-20 years, 60 percent of the length of the marriage; and over 20 years, 75 percent of the length of a marriage.

In addition, there is now a cap on the amount of alimony in durational alimony. It cannot “exceed 35 percent of the difference between the parties’ net incomes, whichever amount is less.”

Wait, there’s more…

One of the things that may have huge implications was the change in the definition of the length of a marriage. That can have large ramifications on your settlement.

In the past, a short-term marriage was defined as up to seven years. It is now 10 years. A moderate-term marriage was from seven to 17 years. It is now 11-20 years. And a long-term marriage is now over 20 years!

This could result in a significant reduction in your anticipated alimony payments.

If you already have permanent alimony, it is also easier to get a modification based on the circumstances of the payee. Before July 1, you could ask for a modification only if your ex-spouse was living with another person. (It automatically ended with remarriage). Now, alimony could end based on another person – other than family or a spouse – supporting your ex for a year or more.

Finally, Florida statute now clearly states how an alimony agreement can be altered in the case of the payor retiring. While this has been somewhat of a precedent based on earlier court cases with modifications, the definition of retirement is clearly stated in the statute and if those definitions are met, alimony ends or is reduced.

Child custody changed too!

A separate piece of legislation may influence divorce agreements with children.

In the past, each case of custody was looked at individually, meaning there was no basis for who had prime custody at the beginning of the case.

Now, the court starts all cases that involved children with the presumption the best interest of the child is to have 50/50 shared custody of minor children. If that is not the case, you must prove “preponderance of the evidence” that a different parenting situation is best for the child.

It is still to be determined how this will be utilized and change how child custody is currently determined.

That is why we believe it is essential to reach out to The Orlando Law Group if you have an existing divorce settlement or are thinking about divorce to ensure you are protected under these new statutes.

The attorneys at The Orlando Law Group represent clients in family law issues and more in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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Independent Contractor Rules Change Again

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As business owners at The Orlando Law Group, we certainly use independent contractors as do many businesses throughout Florida. After all, independent contractors can often provide significant experience in a given field for a fraction of the cost of an employee.

Plus, many of the issues and costs surrounding employees – benefits, overtime, scheduling, time-off and more – are eliminated by working with independent contractors when possible.

Over the past few years, the “gig economy” has had courts, the IRS and the National Labor Relations Board looking closer at how workers should be categorized. And during the Trump administration in 2019, there was an expansion on who could be a contractor.

This June, however, the National Labor Relations Board issued a new ruling to basically reverse that decision. The issue comes down to entrepreneurial opportunity and if the contractor is working for multiple clients.

At The Orlando Law Group, we anticipate these types of criteria will fluctuate for a while as regulators work out how the gig economy will work.

The Orlando Law Group can help your business with any legal issue that might arise, including ones dealing with independent contractors. Our full-service firm helps businesses and individuals in Orlando, Winter Garden, Altamonte Springs, St. Cloud, Kissimmee, Sanford and throughout Central Florida.

What is an Independent Contractor?

Over the years, the independent contractor has been an important part of many business plans. They have been called consultants, 1099s, contractors and more.

But businesses that use them cannot simply substitute an employee for an independent contractor. There are specific rules, but for the most part, it comes down to control. Unlike an employee, a business does not provide any tools to the independent contractor – and cannot control how the contracted work is performed.

For instance, if you hire independent contractors as salespeople, you cannot provide them with sales leads. You cannot say they have to work every Friday or set their hours in any shape or form. You cannot require them to go to the office. You cannot provide them with a laptop or a computer. You shouldn’t even give them a business card with the company’s name on it.

Benefits are off the table. You are not responsible for overtime and certainly not responsible for taxes.

And you most certainly cannot prevent them from contracting to sell for another company at the same time, although you could make industry exclusivity a part of the contract.

The same applies if you are using a delivery driver as an independent contractor, or hiring a beautician, or a pilot, or myriad of other jobs.

Here’s how the IRS determines independent contractors, using three “Common Law Rules.”

  1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
  2. Financial: Are the business aspects of the worker’s job controlled by the payer?
  3. Type of Relationship: Are there written contracts or employee type benefits? Will the relationship continue and is the work performed a key aspect of the business?

Businesses must weigh all these factors when determining whether a worker is an employee or independent contractor. Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another.

These Common Law Rules have governed the independent contractor relationship for quite a while.

Entrepreneurial opportunity

So, what changed?

While the Common Law Rules have been part of the discussion on independent contractors for decades, what changed repeatedly in the last decade is how “entrepreneurial opportunity” is defined.

At the center of that term is how the independent contractor can grow their own business with other clients and other contracts.

In 2014, the NLRB said entrepreneurial opportunity was based on real entrepreneurial opportunity –the independent contractor acquired multiple clients. This ruling limited the number of independent contractors and classified many individuals as employees.

In 2019, that determination was expanded. It wasn’t specific to whether the independent contractor had acquired other clients, it became hypothetical. Could the independent contractor grow their business with other clients, even if they hadn’t? And that became the overriding element of classification.

Of course, applying potential instead of actual actions expanded who could be an independent contractor and the newest ruling from the NLRB returns to the 2014 meaning.

What does this mean for businesses? 

The classification of workers as employees or independent contractors is critically important. If you misclassify employees as independent contractors, you could be liable for back taxes and pay, and depending on the extent and negligence on your part, there could be major fines.

These fines can be significant. For instance, Nike is facing a $500 million fine for misclassifying employees. A small construction staffing company with 200 employees in Virginia has a $270,000 fine to pay for misclassifying employees.

At this point, it is important to be as conservative as possible with independent contractors.

We also believe to protect yourself; you should have an attorney at The Orlando Law Group review your independent contractor agreements. We understand your needs as a business owner and want to make sure your business thrives.

The attorneys at The Orlando Law Group represent clients in business law, labor issues and more in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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The Orlando Law Group Named a 2023 Best Place to Work

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Full-service law firm only law firm in Central Florida on the list

Orlando, Fla (June 20, 2023) – With a significant internal focus on support, friendship and growth for its employees, The Orlando Law Group has been named one of the top companies to work for in Central Florida by Orlando Business Journal.

It is the only law firm on the 2023 Best Places to Work list, comprised of 79 companies in the seven-county metropolitan area.

“We are truly different from other law firms by focusing on our employees and their personal growth and needs, which shows when we are working with our clients,” says Jennifer Englert, founder, The Orlando Law Group. “To be the only law firm on this list is an incredible honor but is reflective of what we have been working to create since I founded this firm more than a decade ago.”

At that time, Englert had just been passed over for a promotion after spending time – but working – on maternity leave. At the core of the new law firm then and still today is compassion for anyone who works there – and their clients.

The Best Places to Work is an intensive process, including a survey that must be completed by more than 80 percent of a company’s employees. The results of the survey are then judged by Orlando Business Journal partner Omaha, Nebraska-based Quantum Workplace.

In the initial nomination, several reasons were given for why The Orlando Law Group should be considered. One of the main points is the company’s upward mobility. In fact, 30 percent of the employees started with the firm and have been promoted to their current roles.

Other reasons include:

  • Frequent company outings and retreats, such as a family cruise or teambuilding dinners.
  • Flexible schedules for family time, even allowing pets to come to work when needed.
  • Strong benefits, including an annual three percent 401k contribution.
  • Celebrations of birthdays, anniversaries and even a Halloween costume contest.

“Really, it comes down to treating people how you would like to be treated,” Englert says. “Everyone on our team truly enjoys each other and has built tremendous camaraderie together.”

The full list of 2023 Best Places to Work can be found here. Orlando Business Journal will be recognizing the companies at an event on August 24 and running a special section featuring all of the companies in its August 25 edition.

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For more information, contact Alan Byrd, Alan Byrd & Associates, 407-415-8470, [email protected]

About The Orlando Law Group: Founded in 2009, The Orlando Law Group is a full-service law firm with 11 attorneys in four offices in Orlando, Winter Garden, Altamonte Springs and Lake Nona. The firm specializes in a broad range of practice areas specifically for individuals and businesses, particularly in business law, family law, personal injury law, personal finance and estate planning law and much more. For more information, please visit TheOrlandoLawGroup.com

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ChatGPT, Artificial Intelligence and the Law

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Just like everyone, The Orlando Law Group wants to explore the capabilities of ChatGPT and other artificial intelligence technology coming out. But we are attorneys and we approach everything with caution.

With any new technology, there are going to be pitfalls. We certainly watched closely as the artificial intelligence system provided fake cases that were used in court pleadings in New York. We are also watching how businesses are starting to use ChatGPT in a wide range of uses, everything from marketing language to creating policy documents to building sales plans.

From what we have seen, the technology is fantastic for searching for information, but there are obstacles that come that may present legal issues for your and your business if you use them.

The Orlando Law Group can help your business with any legal issue that might arise, including ones dealing with new technologies. As a full-service firm with attorneys helping businesses and individuals, we help businesses in Orlando, Winter Garden, Altamonte Springs, St. Cloud, Kissimmee, Sanford and throughout Central Florida.

What is ChatGPT?

Late in 2022, OpenAI unveiled its latest project, ChatGPT. This new tool can research and compose articles, papers and more on just about any subject.

For instance, we asked it “What is ChatGPT in two paragraphs?” In a matter of seconds, it responded with:

ChatGPT is a state-of-the-art language model developed by OpenAI. It represents the cutting-edge in natural language processing and generation technology. Built upon the GPT-3.5 architecture, ChatGPT has been trained on an extensive corpus of diverse and high-quality text data, enabling it to understand and generate coherent responses to text-based prompts. The model utilizes a transformer architecture, which allows it to capture long-range dependencies and contextual relationships between words and sentences.

With ChatGPT, users can engage in interactive and dynamic conversations with the model, making it a versatile tool for a range of applications. It can serve as a chatbot or virtual assistant, providing human-like responses and assistance in various domains. It can also be used for content generation, translation, and aiding in research tasks. While ChatGPT exhibits remarkable language understanding and generation capabilities, it’s important to exercise caution and verify information obtained from the model, as it may occasionally produce inaccurate or misleading responses. Nonetheless, ChatGPT represents a significant advancement in the field of natural language processing and is poised to shape the future of human-computer interaction.

Maybe we should have asked it for a simple definition…

What could go wrong?

As with any new technology, there are too many possibilities for something to go wrong that we can not possibly see every legal issue that might arise in the future and there is a strong possibility that legislation might affect those issues.

But for now, there are a few things we think could cause legal issues.

  1. Copyrighted material:

Every business should be very protective about their copyright materials and be careful not to use copyrighted material. ChatGPT could create issues for the user – and the copyright holder.

Bloomberg Law wrote a tremendous piece on this subject, but the central aspect on copyright issues is what role a person plays.

Late last year, the U.S. Copyright Office issued the following:  The Human Authorship Requirement – The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Trade-Mark Cases, 100 U.S. 82, 94 (1879).

Basically, this says if the material is determined to be an output of a computer, then it is not eligible for copyright protection. Of course, that is subject to interpretation too. Does the prompt given to ChatGPT constitute “human authorship?” That is still to be determined.

What about your copyrighted material? After all, your words, your lyrics, your designs are most likely in the public domain and could be used by ChatGPT. In that case, it is somewhat based on traditional laws. Did the user plan to make money off the copyrighted materials? If so, you might have a case.

  1. Trademarks and licensing

In this case, it is fairly straightforward. While artificial intelligence is very good at utilizing photographs and images, you simply can not do that in any marketing aspect. In most cases, the technology will only use this sort of image – logos, photos, etc. – if prompted by the user.

So, as a rule of thumb, just do not use celebrities, brands, and logos when you ask ChatGPT.

  1. Proprietary and protected data

Nearly every business takes great strides to protect data, like customer credit cards. medical records or proprietary algorithms. And any company that deals with that type of data fully understands the amount of and the creativity of cyber-attacks can be overwhelming.

Unfortunately, AI and ChatGPT expose other avenues for criminals to exploit. For instance, you might input customer information into your chatbot program to help it answer questions better. That might have been secure a year ago, but now that could be found through new technology and used elsewhere – and publicly.

  1. Check your facts

Finally, we come back to the attorney who submitted fake cases provided by ChatGPT in court documents. The issue is the attorney assumed it was right.

Most businesses would not see something on Twiiter and claim it is a fact in their marketing or their proposals without verifying first. The same rule applies to ChatGPT and any artificial intelligence. Check your sources because at best, you may look foolish, but at worst, you could be found liable for false advertising, statements and more.

The Orlando Law Group is starting to see how these technologies can be applied and improve our legal research, but our attorneys understand the best computers still cannot listen to you and your needs and develop cases or defenses based on your unique situation.

That is our specialty. A full-service law firm with attorneys who are involved with you, care for you and advocate for you.

The attorneys at The Orlando Law Group represent clients in business law, copyrights, trademarks and technology in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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LLCs: Is It Better to Tax as a Partnership or S-Corporation?

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All businesses, even some of the biggest corporations you can think of, started as a small business. They are a major part of the American dream and they allow people to use their creativity to support their local community or build a life for themselves. This concept draws in people from all over the world who do not have the same opportunities as those born in the United States.

There are millions of small businesses in the United States, and they are the bones of the American economy. They create tens of thousands of jobs each year, make up almost all businesses in the United States, and are accountable for a large portion of the country’s economic activity.

That being said, starting a small business is not always easy. It takes a lot of time, money, and personal investment to start a small business and make it successful. It also comes with a lot of decisions on how the company should be structured and taxed.

One of the most common structures for small businesses are Limited Liability Companies, commonly referred to as LLCs.

What is an LLC?

An LLC protects owners from being personally responsible for a company’s debts and liabilities and was created by law.

When there is an LLC with a single owner, it is treated like a sole proprietorship, and when there are multiple owners, they can be taxed as either partnerships or corporations.  It is important to talk to your accountant about what is best.

Some of the benefits of an LLC taxed as a partnership include:

  • Flexibility: firms that have complex structures of ownership and investment strategies that vary, find that the flexibility in profit distribution, governance arrangements, and structuring ownership interests is very important.
  • Pass-through Taxation: Pass-through taxation is when the profits and losses of the firm flow through to the partners or individual member’s personal tax returns. This avoids something called “double taxation,” being taxed twice on the same income, and allows the tax treatment to be aligned with situations of the individual investors.
  • Limited Liability Protection: This structure provides limited liability protection, which means that the personal assets of the members or partners and the liabilities of the firm are separate. This is extremely important for private equity firms that engage in investments that are high-risk.
  • Operational Flexibility: LLCs also offer operational flexibility. This allows private equity firms to make their own decisions and manage their investments efficiently, to their liking. It allows for the adoption of operating agreements that can be made to meet any specific requirements or needs the firm has.
  • Alignment with Investor Preferences: Many investors, including high-net-worth individuals and entities that make investments for other people, actually prefer investing in private equity funds structured as LLCs taxed as partnerships. The pass-through taxation allows the tax treatment to align with the investors’ individual needs and desires, which makes it a lot easier to incorporate the investment into the rest of their tax planning.
  • Section 754 Basis Adjustment: By taxing an LLC as a partnership, private equity firms might be able to take advantage of a Section 754 election. This gives the firms the ability to adjust the tax basis of the partnership’s assets when ownership interest goes under transformation, which can be a valuable tool. When private equity firms engage in buying and selling investments, to allocate the stepped-up basis to the acquiring partner and potentially increase amortization deductions or future depreciation. This can be helpful in the private equity industry where there are varying tax bases and holding periods for investments. It provides additional flexibility when managing investments, especially when frequent transfers of partnership interests are anticipated or if there is a diverse portfolio with assets held at varying tax bases.  This can possibly result in tax savings and enhanced tax planning opportunities.  The benefits are not uniform, and they depend on the unique circumstances of the firm and its investors. It is especially important for private equity firms to examine this carefully and consult with legal and tax professionals to determine what the best option for them is.

Another option for taxing LLCs is by taxing them as an S corporation. This is a selection you have to actively make that has a similar pass-through taxing structure. Therefore, taxing an LLC as an S corporation has some of the same benefits as taxing it as a partnership, but there are differences also.

  • Restrictions on Ownership: There are specific eligibility requirements for shareholders. It is limited to one hundred or fewer individuals, select trusts, and estates as shareholders. This can, effectively, limit the flexibility when it comes to raising capital or having certain types of investors.
  • Limited Flexibility in Allocations: S corporations are subject to more strict allocation rules than LLCs taxed as partnerships. They have to distribute their profits and losses to their shareholders according to percentage of ownership. This can become a problem if an owner wishes to allocate the profits or losses in a disproportionate way, because of different shareholder agreements.
  • Restrictions on Entity Structure: S corporations also have restrictions on what kinds of entities can own their shares. For example, C corporations, partnerships, and most kinds of LLCs cannot be shareholders. This limits the options for structuring more complex business relationships or even pursuing certain investment strategies.
  • Limited Fringe Benefits: There may be restrictions on tax treatment of fringe benefits if the S corporation owners own more than 2% of the company’s shares. The owners may also be subjected to additional tax consequences for benefits such as health insurance premiums, medical expense reimbursements, etc.
  • Potential Self-Employment Tax: While shareholders of an S corporation might be able to save on self-employment taxes by paying themselves a lower salary and taking the extra profits as distributions, the IRS may scrutinize the salary amount. If it is deemed unreasonably low, they could reclassify a portion of the distributions as wages, making them subject to employment taxes, which can result in additional tax liabilities and potential penalties.
  • Termination of S Corporation Status: The requirements of an S corporation must constantly be adhered to, in order to maintain their status. If they are not, for instance by exceeding the limit on the number or having an improper type of shareholder. This can, unfortunately, lead to unintended tax consequences and higher taxes if the corporation ends up being treated as a C corporation.

If you are looking for an attorney who understands business, look no further than The Orlando Law Group. Our firm is led by a serial entrepreneur, Jennifer Englert, who has not only grown the firm from its inception but is also a founder or owner in more than a dozen companies in and around Orlando, Altamonte Springs, Winter Garden and St. Cloud.  That experience is critical in giving you legal advice. The Orlando Law Group is not just looking at the law pertaining to your unique circumstance, but it is also looking at your business and what makes your business special.

If you would like to schedule a consultation for any business issue, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it for any of our services, not just business law.

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Update Your Estate Plan After Major Life Events

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Estate Planning is the process of creating legally enforceable documents that determine how your assets will be distributed upon the event of your death. Your estate plan, just as it sounds, refers to your personal plan for your estate, including who inherits what, which assets and how those assets will be distributed to your beneficiaries or heirs.

There may be many reasons why a person should update their estate plan, but generally, you should look to update your estate plan after a major life event, such as getting married, getting divorced, or after having a baby. Keeping your estate plan up to date allows you to best ensure that your wishes for your estate are followed and that your legacy is protected. Read on to learn about some of the common reasons or major life events after which someone may need to update their estate plan.

  1. Marriage: Starting a life with your spouse brings with it many life-altering changes. But during this exciting time of wedding planning, honeymoon booking and even preparing for the eventual arrival of children, it’s vital that you don’t forget to keep your estate plan up to date. Doing so allows you to name your new spouse as an emergency contact or beneficiary for existing insurance benefits, and to ensure that he or she is taken care of in the event of your death.
  2. Divorce: Splitting up a marriage can be messy and costly. Updating your estate plan following the dissolution of a marriage is vital to ensure that your assets are split as per your wishes. Many people take their ex completely out of the equation, while some prefer to leave them something in their will. No matter what your decision may be, it is incredibly important to get your wishes on paper as soon as possible.
  3. Cash Infusion: If you receive a large salary increase at work or come into money through inheritance or chance, you’ll want to update your estate plan to accommodate a larger bank account.
  4. Having a Child or Having a Grandchild: Adding on to your family is a joyous occasion that calls for immediate alterations to your estate plan. Your new addition needs to become a beneficiary, and guardians must be named in your will. (This is also a great time to draft a will if you haven’t yet!) As you add on to your family over the years, you should continuously update your estate plan. It’s best to amend the documents so the new family members are named and specifically included in your estate plan.
  5. Your Life’s Circumstances or Relationships Change: A change in your life’s circumstances or your personal relationships could refer to the addition of a new child, grandchild, niece or nephew, or perhaps a new romantic relationship of close friend, which could lead you to want to alter your estate plan to specifically include new friends, romantic partners or family members in your estate plan. However, there may also be times when it is appropriate to remove someone who formerly was included in the estate plan, such as someone who has been irresponsible with money in the past or who is estranged from the family. You may also decide to include a charitable organization in your will.
  6. A Death in The Family: If you outlive some of the people named in your estate plan, you will need to update once again. If your Power of Attorney, Health Care Proxy, or Executor passes away you will need to name new ones. Also, should a beneficiary die, their inheritance should be reallocated immediately to other living heirs.
  7. Sickness: If you are diagnosed with a chronic or fatal illness you should begin planning before your condition worsens. As per your estate plan, you can decide who will make medical decisions on your behalf in the event you become physically unable. You can also use this opportunity to fill out a Do Not Resuscitate order if your state allows it.
  8. Changing Laws and Locations: Federal and state laws are constantly in flux and can impact your estate plan. Also, since different states have different laws, it is important to check with a legal professional once you move to a new area to see if any changes need to be made to your existing plan.

As you can see, there are many reasons a person would want to update their estate plan after a major life event. However, the importance of timeliness in updating your estate plan should not be underestimated. If you fail to keep your estate plan up to date for whatever reason, or if you suddenly become unable to update your estate plan (such as after falling ill or becoming incapacitated), your estate could end up in the hands of someone that you did not intend it to be for. The last thing you would want is for your estate and assets to go to someone you did not want it to go to and to fall out the hands of those you did want it to go to just because you did not speak to an estate planning attorney and update your estate plan.

If you need to make any changes to your estate plan after a major life event, you should do so as soon as possible so that you do not miss the chance to do so and to put your mind at ease knowing that your estate is in good hands. If you have not already created your estate plan or had a will prepared, you should consult with an estate planning attorney to get your documents drafted as soon as you can.

The attorneys at The Orlando Law Group represent individuals throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are dealing with an estate planning issue or looking to establish your own estate plan, 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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Terminating a Foreign Worker

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We’ve all been there. 

You hire what you think will be a great employee, and it turns out you missed the mark during the interview. Or your great employee is found to be harassing other employees. Or you just need to cut certain staff because of a downturn in the economy.

In nearly any circumstance, ending the employment of someone who works for you is not an easy task.

But what if that employee came to you through an immigration program, like an H-1 visa or an E visa? If that’s the case, there are very specific steps you must take to follow state and federal laws for both immigration and labor laws.

The Orlando Law Group can help your business on both accounts. As a full-service firm with attorneys helping businesses and individuals, we can certainly help employers looking to terminate foreign workers in Orlando, Winter Garden, Altamonte Springs, St. Cloud, Kissimmee, Sanford and throughout Central Florida.

Notification of Termination

In nearly all cases of employment immigration, if you are terminating the employment of someone who is working with you under an employment visa, you will need to ensure multiple entities are notified. 

This could include the employee, the United States Customs and Immigration Services, and possibly the consulate of the employee’s country of origin. Like so many legal concepts in immigration law, the actual process is dependent on the visa that is being used.

There are two possible exceptions to the above. If the employee is under a TN visa for employees from Mexico and Canada, and if a visa is designated for employees who transferred from one location within the company to a location in the United States.

Extra Expenses

When employing foreign workers, there may be expenses you have incurred when bringing those workers to your company.

Likewise, if you terminate a foreign employee, you may need to reimburse the employee to aid them in returning to their home country for “At least equal to the costs charged by the most economical and reasonable common carrier for the distances involved,” according to the Department of Labor. 

This stipulation does not apply equally to all employment visas, and the case law on this issue evolves regularly. There is no hard definition of what is the “most economical and reasonable” cost that an employer must pay. 

The attorneys at The Orlando Law Group are here to help you navigate this critical step.

Grace Period

When you terminate an employee, that employee is not necessarily required to go straight to the airport and back to their home country. In most cases, workers are provided a grace period of up to 60 days to put their affairs in order and return to their home country. 

To be clear, however, this is not an excuse for workers to overstay their visa. If the visa expires 30 days after termination, the employee can only stay for 30 days. 

There may be other options available for the employee in this situation. While this blog is focused on employers, The Orlando Law Group can help individuals who were terminated while working in the United States through an immigration program as well. There also may be some opportunities for an individual to stay in the United States after termination. 

Your attorney at The Orlando Law Group can help to see if there are options available in your unique circumstance.

I-140 Withdrawal

One of the central parts of terminating an employee is the I-140 petition, which is key to the immigration process for certain employees. 

Remember, this does not apply to all foreign employees but can have significant effects on some foreign employees. The attorneys at The Orlando Law Group can help you determine what may happen to an employee’s I-140 petition.

For employers, keep in mind the I-140 petition is extremely important to your employees, and a commitment to not withdraw the petition within the first 180 days of employment can be a very useful employee benefit to attract higher-level employees. 

Attorneys for Both Employee and Employer

The Orlando Law Group is a full-service law firm that helps businesses, organizations, and individuals with a wide range of legal services. As such, there may be cases where The Orlando Law Group can represent both the employer and the employee in an immigration case when their interests are totally aligned.

Of course, when that happens, The Orlando Law Group will be open and transparent and will only provide legal assistance to both parties with the express permission of both parties as information must be shared between everyone.

Conclusion

While terminating an employee can be complicated, The Orlando Law Group can help guide you to operate within the complex immigration system and its associated labor laws. 

The complexity of terminating foreign employees should not prevent any business from hiring foreign employees. The benefits of foreign labor can be substantial, especially during times like these when good employees are hard to come by.

If you are looking to terminate a foreign employee in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, or Kissimmee, we’re here to help you with a full team of attorneys who care about you and your circumstance and treat you with compassion while seeking the best possible outcome for you and your loved ones. 

The attorneys at The Orlando Law Group represent businesses in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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Can a Tenant Delay The Eviction Process?

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In Florida, eviction actions range in completion time depending on the County, and the specific judge assigned to your case. Typically, the tenant has not paid rent for a few months, and the landlord is ready to kick them out of the residence. The most frequent question we receive from Landlords is whether the tenant will be able to fight or delay the eviction process. Chapter 83 Florida Statutes, and the lease agreement are the controlling documents between the landlord and the tenant. It is important to note that while your lease can not take away certain tenant rights provided under the statute, it can provide the tenant with additional protections beyond what is provided under Florida law. For example, the statutes say that if the tenant fails to pay rent, you can serve them with a three-day notice, and subsequently terminate the tenancy if they fail to remedy the non-payment. See 83.56(3). However, if your lease provides five (5) or seven (7) days instead of three (3), you are bound by the terms of your lease. Make sure your lease provides only the protections that you want and does not extend the statutes reach in favor of your tenant. When you have properly terminated the tenancy (giving the proper notice as required under the Florida Statutes), you can file an eviction action. As an eviction is a legal action, the tenant will always have a right to respond to the case before they are kicked out. Possession of the property is governed by the summary procedure in Florida which gives the tenants the opportunity to respond within five (5) days of service of the complaint upon them. During this period, you cannot progress your eviction action. Upon the expiration of the five (5) days, your next move will be determined based on whether the tenant has filed a response to your complaint:

  • If the tenant has not filed a response you can move for a clerk’s default against the tenant. Once the clerk’s default is issued, you can ask the Court to enter a Judicial Default and Final Judgment. This is the fastest route to remove a tenant.
  • If the tenant does file a response (and likely a Motion to Determine Rent) you will need to determine whether the tenant has presented any legitimate defenses to your action for eviction. The next step is to set a hearing before the judge to determine whether the tenant’s arguments have any merit.

Evictions on average take about one (1) to three (3) months depending on the County and the specific judge. The Landlord is not receiving rent during this time, while also coming out of pocket to pay the expenses for filing the eviction. The landlord is typically paying a mortgage on the property as well, so financially, this does not put the landlord in a good place. Every Landlord wants to streamline the process and get the tenant out as fast as possible, and often as, “is there any way for the tenant to delay the eviction process.” Unfortunately, yes. Ways Tenants Delay Evictions: 1. If the tenant is not financially able to pay the rent, or if they are materially violating the lease in a different way, the Tenant may tell the landlord what they want to hear to lengthen the amount of time before the landlord files the eviction. Oftentimes landlords try to be friends with their tenants, but this false idea harms the landlord because you may be a few months behind on rent before you file the eviction action. Now the one (1) to three (3) month eviction process begins and you have lost rent for almost half a year while carrying liability and responsibility for the property.

  1. Deficiencies in Landlord’s Notices: The statutes make it clear that there is very specific language that must be provided in the Notice that you provide. If you fail to adhere to the requirements and it is brought to the judge’s attention, they may reset your case and require you to give the proper notice.
  2. Motion to Determine the Amount of Rent to Place Into the Registry: 83.60(2) provides that the tenant can file a Motion to Determine the amount of rent owed if they believe the amount in the complaint is incorrect. If a tenant files this Motion, do not wait to set a hearing on the matter. The Court will not move forward with the case until one of the parties sets the Motion for hearing.
  3. Accepting Rent with Knowledge of a non-compliance 83.56(5)(a): If the Landlord is aware of a matter of noncompliance by the tenant, the Landlord must be careful when they accept rent from the tenant. By accepting rent, you may have waived your right to evict over certain action committed by the tenant.
  4. Unclean Hands: A Landlord cannot evict a tenant for something that has happened within the control of the Landlord. If the Landlord is the cause of the action creating the need for the eviction, the removal of the tenant is likely to be unsuccessful.
  5. Issues with Service: The tenants must be served in accordance with Florida Statutes. If the Landlord delivers the summons to the tenants themselves, or if there are any other deficiencies in service, the Court could force the action to restart, requiring the Landlord to properly serve the tenants.
  6. Retaliatory Evictions: The Landlord cannot evict the tenant as retaliation for the Tenant exercising a legally protected right. This will have your eviction action dismissed and you may face civil penalties.
  7. Self-Help: The landlord must go through the Court system to remove a tenant. The Landlord is not allowed to “Self-Help.” This means that the Landlord cannot change the locks, remove doors or windows, cut off utilities (even if they are in the landlord’s name) or removing the tenants belongings.
  8. Landlord Does Not Evict All Parties: Sometimes there are tenants, sometimes there are other occupants, and sometimes there are unknown parties in possession. This is crucial to identify at the time of filing the eviction because a judgment against one party does not operate as a judgment against all parties. You may be successful in getting your tenant out to find that a friend of theirs has been living in the house and now refuses to leave.
  9. Filing the Appropriate Action: There are three main ways to get people out of a house. Chapter 83 (Evictions), Chapter 82 (Unlawful Detainer) and Chapter 66 (Ejectment). If you file the wrong type of action, your court case will either be dismissed or transferred to the appropriate Court.
  10. Bankruptcy: The automatic stay of a bankruptcy may prevent you from removing your tenant from the property for a period of ninety (90) days unless you have received a final judgment prior to the bankruptcy filing.

If there is a way to delay the eviction action, the Tenant is going to try to do so. As a landlord, make sure that your lease is strong, and that you have conducted yourself in accordance with Florida Statutes. If the Tenant poses a defense, address it during the eviction but do not wait to file your action until you are financially strapped. 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 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.

Real estate is an essential part of the Florida economy. Whether you are a large developer or simply buying a home, you need real estate counsel. The Orlando Law Group’s attorneys handle virtually all aspects of real estate. We represent individuals by reviewing their leases as well as contracts. We also represent developers, contractors, lenders, and owners of commercial properties. Why Hire a Florida Real Estate Attorney? To start, why should you hire a real estate attorney? There are countless reasons why one might want to hire an attorney, but here are a few of the most common. First, hiring an attorney to handle your real estate matter will ultimately save you time and money. A real estate attorney will safeguard you, your clients and their investment by thoroughly reviewing all legal documentation, handling negotiations keeping you and your clients informed throughout the process and asking the questions you may not know to ask. Hiring a real estate attorney can also give you clarity and peace of mind throughout the transaction. Hiring an attorney to review all agreements and contracts and assist in negotiations will ensure the maximum level of transparency and comfort for your clients and can also grant you the peace of mind that your transaction is legally sound and has been reviewed thoroughly by a professional. A real estate attorney also has valuable experience and knowledge from working in the field that simply cannot be recreated. Our attorneys have the institutional knowledge of working daily in the industry and have their fingers on the pulse of the local and state laws. Especially for those of you with unique real estate situations, it’s important to have the legal support to mitigate any risks that could delay, if not jeopardize, your real estate purchase. Lastly, hiring a real estate attorney can also expedite the process of your transaction significantly. Hiring a Florida real estate attorney not only serves to protect each party’s interests but also expedites the entire process and helps to streamline the contract negotiation, the closing process, securing title insurance and communicating with lenders. The Importance of Prevention in Real Estate Law and for Real Estate Agents Often, we turn to lawyers as a last resort – after the contract has been signed, or when a dispute is already out of control. However, good legal advice is one of the greatest preventative measures a lawyer can provide. Not only can it save you money in the long run, but it can also save you from unpleasant difficulties later. At The Orlando Law Group, you can be sure that your attorney possesses both a sharp, experienced legal mind, and a friendly smile that will welcome and comfort you. What’s more, we are serious about preventative legal tactics, working to solve issues for our clients before they blow up into legal messes. Simply put, we are here for you, and we have your back at all times! A successful Florida residential real estate transaction is more than mere document preparation. Buyers and sellers alike may encounter any number of hiccups including, but most definitely not limited to, disclosures, financing, findings as a result of property inspections, dealing with property owner association requirements and title insurance. As a real estate agent, it is wise to have a go-to Florida real estate attorney to ensure that you and your clients are protected and are properly informed when making pertinent decisions. While conducting a residential real estate transaction in Florida, only an attorney can provide legal guidance and advice that is truly in your best interest. Legal Connections in Real Estate – Why Hire a Full-Service Firm?

  • Diverse Clientele: Our firm provides legal assistance to a wide variety of clients with different needs and preferences, meaning our team is well-equipped to handle the specificities of your situation.
  • Multiple Perspectives: If your attorney needs an objective perspective from a different legal professional, they can get that from within the firm. You can’t get that kind of flexibility from a boutique lawyer, who would have to hire another attorney for a second opinion.
  • One-Stop-Shop: At The Orlando Law Group, we work as a team in all endeavors. With each attorney having experience in a multitude of fields, we can provide a comprehensive solution for our clients.
  • Flexibility and Creativity: As a full-service firm, each member of our team has a diverse skillset and base of knowledge. With these assets, we are able to navigate through each case with flexibility and provide creative solutions for our clients.
  • Adaptability: Like many industries, the legal world is subject to change and improvement over time. New laws are created, and we are responsible for understanding the fine details on how they affect our clients. What makes us successful is our ability to learn these new laws and understand how they apply to current and future clients.

A legal challenge can easily stretch across multiple practice areas. Real Estate Law, for example, can stretch into business law, family law, and estate planning quite easily. As a full-service firm, we are well-equipped to tackle any legal challenge involving real estate, regardless of how many other disciplines the challenge involves. We offer a wide range of services to meet the needs of the Florida real estate community, whether it be for residential or commercial real estate. Here are a few examples of some connections real estate law can have with other areas of law:

  • Family Law: A divorce or separation can often involve complex real estate transactions or the division of assets, including property.
  • Probate Law: When a person passes away, you may find yourself in a situation where the deceased person owns a piece of property and the heirs of that person want to sell it, but probate must be administrated prior to this occurring.
  • Business Law: Business law can easily relate to real estate law when commercial property transactions are involved, or a business is buying or selling a property.
  • Civil Litigation: In some situations, disputes cannot be fully solved through negotiation and may require complex civil litigation to address.

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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Commercial v. Residential Real Estate What’s The Difference? What Does a Commercial Real Estate Lawyer Do?

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There are two main types of real estate: commercial and residential. Commercial real estate is any property that is used for business purposes, whereas residential real estate refers to any property that is used for housing or living purposes.

There are some key differences between residential and commercial real estate. For example, commercial leases are typically longer than residential leases, and commercial mortgages are typically larger than residential mortgages. Furthermore, the regulations and laws that govern commercial real estate transactions tend to be more complex than those that govern residential real estate transactions.

Commercial Real Estate

Commercial real estate can encompass a large range of properties, including offices, retail stores, restaurants, franchises, hotels, warehouses, and factories. These properties are typically used for business purposes, such as for selling products or providing a service, although they can also be used for housing purposes, such as a commercial housing development.

Commercial real estate transactions can be very complicated and may frequently require the assistance of an experienced real estate attorney. There are numerous considerations to have when buying, selling or investing in commercial property, such as zoning, environmental regulations, legal requirements, and tax implications. A great real estate attorney can help you to navigate the many challenges that come with getting involved in commercial real estate.

What Does a Commercial Real Estate Lawyer Do?

Commercial real estate lawyers do many of the same things that attorneys focusing on residential real estate do—they work with buyers and sellers, manage title issues, review and draft contracts, and negotiate with lenders. But what makes a commercial real estate lawyer different from a residential real estate lawyer?

The main difference between these two real estate law specialties is that lawyers practicing commercial real estate law need to have knowledge in a few areas of law which are specifically related to businesses. Commercial real estate law usually involves more complex regulations and laws than residential real estate laws, and commercial real estate developers, investors and landlords have a lot more information and laws they need to be aware of than your typical homeowner.

This is where a great commercial real estate lawyer comes in. A great commercial real estate lawyer has ample experience with commercial real estate, exceptional knowledge on the local market and beyond, and knows how to combine that experience and knowledge with excellent people and communication skills to solve any real estate issue, no matter how complex. No matter how experienced a business owner or commercial real estate developer you are; it is never a bad idea to consult an experienced commercial real estate attorney to ensure that you are operating with optimal security and shielding yourself from liability.

As to what services a commercial real estate attorney typically offers; this can obviously vary widely depending on the attorney, firm, geographic location, and market. For instance, some attorneys may specialize in just one or a few key practice areas, while other attorneys may be more of a one-stop-shop for all your real estate needs. As to what services our firm offers for commercial real estate purposes, being a full-service firm, we’re proud to consider ourselves a true one-stop-stop for all your commercial real estate needs. The below are just some of the services we offer for commercial real estate purposes.

Our Commercial Real Estate Services Include:

  • Real estate litigation: Even if you do nearly everything right as a business owner or real estate developer, there may become times where a dispute arises, and litigation is made necessary. While litigation can be incredibly stressful for those dealing with it, a great commercial real estate attorney will ease the minds of their clients even when handling the most complex cases.
  • Commercial buyer/seller representation: Whether you’re buying or selling a commercial property, it’s important to ensure that your interests are protected, and that the transaction is being conducted legally. This is especially key when dealing with commercial properties.
  • Commercial lease drafting and review: If you’re looking to rent out a commercial property and try your hand at being a landlord, you’ll want to make sure your lease is airtight. Check out our previous blog on commercial leases to learn more.
  • Purchase and sale agreements: A purchase or sale agreement is a contract which spells out the terms and conditions of a real estate transaction. With an expensive commercial property, it is especially paramount that these agreements are legally sound and in your best interest.
  • Loan agreements and disclosures: As a real estate developer or investor putting your hard-earned money into a property, you want to ensure that your investment is well-placed and eventually comes to fruition. A great commercial real estate attorney can draft a loan agreement or disclosure that looks out for you or review a loan agreement or disclosure to makes sure it aligns with your interests.
  • Land use and building code documents: A commercial real estate attorney can help you to navigate the complexities of the Florida Building Code and ensure that your documents are legally sound.
  • Confidentiality and non-disclosure agreements: As a full-service law firm, our attorneys also practice business and employment law. If you’re looking to start a real estate business, such as a brokerage, or if you’re negotiating a deal with another business owner, we are happy to assist you in drafting confidentiality and non-disclosure agreements.
  • Fiduciary duty legal counsel: Beyond drafting and reviewing documents and going to court, some of the most important service any attorney can offer is preventative legal advice or counsel. This skill is exceptionally important when it comes to commercial real estate, as there are typically more regulations and laws associated with commercial real estate than residential real estate. You’ll want to make sure that you are operating with optimal legality and following all requirements.
  • Commercial lease negotiation: Having trouble drafting a lease that all parties will agree to? A good commercial real estate attorney could be a great asset to you. Our commercial real estate attorneys are not only skilled in drafting and reviewing documents but are also exceptional at negotiating with business partners and tenants.
  • Commercial development: Being a full-service firm, our attorneys can advise you in regard to all aspects of your real estate business, from general business advice, counsel on employment law, and more. Hiring a full-service firm to fulfill your commercial real estate needs ensures that all your bases are covered at all times.
  • Escrow services: A commercial real estate attorney can handle closings from start to finish, including the escrow process. You’ll need an attorney you can trust to safeguard your escrow deposit. An attorney can also assist in the event of any escrow related disputes.

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.

Real estate is an essential part of the Florida economy. Whether you are a large developer or simply buying a home, you need real estate counsel. The Orlando Law Group’s attorneys handle virtually all aspects of real estate. We represent individuals by reviewing their leases as well as contracts. We also represent developers, contractors, lenders, and owners of commercial properties.

Why Hire a Florida Real Estate Attorney?

To start, why should you hire a real estate attorney? There are countless reasons why one might want to hire an attorney, but here are a few of the most common. First, hiring an attorney to handle your real estate matter will ultimately save you time and money. A real estate attorney will safeguard you, your clients and their investment by thoroughly reviewing all legal documentation, handling negotiations keeping you and your clients informed throughout the process and asking the questions you may not know to ask. Hiring a real estate attorney can also give you clarity and peace of mind throughout the transaction. Hiring an attorney to review all agreements and contracts and assist in negotiations will ensure the maximum level of transparency and comfort for your clients and can also grant you the peace of mind that your transaction is legally sound and has been reviewed thoroughly by a professional.

A real estate attorney also has valuable experience and knowledge from working in the field that simply cannot be recreated. Our attorneys have the institutional knowledge of working daily in the industry and have their fingers on the pulse of the local and state laws. Especially for those of you with unique real estate situations, it’s important to have the legal support to mitigate any risks that could delay, if not jeopardize, your real estate purchase. Lastly, hiring a real estate attorney can also expedite the process of your transaction significantly. Hiring a Florida real estate attorney not only serves to protect each party’s interests but also expedites the entire process and helps to streamline the contract negotiation, the closing process, securing title insurance and communicating with lenders.

The Importance of Prevention in Real Estate Law and for Real Estate Agents

Often, we turn to lawyers as a last resort – after the contract has been signed, or when a dispute is already out of control. However, good legal advice is one of the greatest preventative measures a lawyer can provide. Not only can it save you money in the long run, but it can also save you from unpleasant difficulties later.

At The Orlando Law Group, you can be sure that your attorney possesses both a sharp, experienced legal mind, and a friendly smile that will welcome and comfort you. What’s more, we are serious about preventative legal tactics, working to solve issues for our clients before they blow up into legal messes. Simply put, we are here for you, and we have your back at all times!

A successful Florida residential real estate transaction is more than mere document preparation. Buyers and sellers alike may encounter any number of hiccups including, but most definitely not limited to, disclosures, financing, findings as a result of property inspections, dealing with property owner association requirements and title insurance.

As a real estate agent, it is wise to have a go-to Florida real estate attorney to ensure that you and your clients are protected and are properly informed when making pertinent decisions. While conducting a residential real estate transaction in Florida, only an attorney can provide legal guidance and advice that is truly in your best interest.

Legal Connections in Real Estate – Why Hire a Full-Service Firm?

  • Diverse Clientele: Our firm provides legal assistance to a wide variety of clients with different needs and preferences, meaning our team is well-equipped to handle the specificities of your situation.
  • Multiple Perspectives: If your attorney needs an objective perspective from a different legal professional, they can get that from within the firm. You can’t get that kind of flexibility from a boutique lawyer, who would have to hire another attorney for a second opinion.
  • One-Stop-Shop: At The Orlando Law Group, we work as a team in all endeavors. With each attorney having experience in a multitude of fields, we can provide a comprehensive solution for our clients.
  • Flexibility and Creativity: As a full-service firm, each member of our team has a diverse skillset and base of knowledge. With these assets, we are able to navigate through each case with flexibility and provide creative solutions for our clients.
  • Adaptability: Like many industries, the legal world is subject to change and improvement over time. New laws are created, and we are responsible for understanding the fine details on how they affect our clients. What makes us successful is our ability to learn these new laws and understand how they apply to current and future clients.

A legal challenge can easily stretch across multiple practice areas. Real Estate Law, for example, can stretch into business law, family law, and estate planning quite easily. As a full-service firm, we are well-equipped to tackle any legal challenge involving real estate, regardless of how many other disciplines the challenge involves. We offer a wide range of services to meet the needs of the Florida real estate community, whether it be for residential or commercial real estate. Here are a few examples of some connections real estate law can have with other areas of law:

  • Family Law: A divorce or separation can often involve complex real estate transactions or the division of assets, including property.
  • Probate Law: When a person passes away, you may find yourself in a situation where the deceased person owns a piece of property and the heirs of that person want to sell it, but probate must be administrated prior to this occurring.
  • Business Law: Business law can easily relate to real estate law when commercial property transactions are involved, or a business is buying or selling a property.
  • Civil Litigation: In some situations, disputes cannot be fully solved through negotiation and may require complex civil litigation to address.

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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Why You Need a Real Estate Lawyer

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Real estate is an essential part of the Florida economy. Whether you are a large developer or simply buying a home, you need real estate counsel. The Orlando Law Group’s attorneys handle virtually all aspects of real estate. We represent individuals by reviewing their leases as well as contracts. We also represent developers, contractors, lenders, and owners of commercial properties.

Why Hire a Florida Real Estate Attorney?

To start, why should you hire a real estate attorney? There are countless reasons why one might want to hire an attorney, but here are a few of the most common. First, hiring an attorney to handle your real estate matter will ultimately save you time and money. A real estate attorney will safeguard you, your clients and their investment by thoroughly reviewing all legal documentation, handling negotiations keeping you and your clients informed throughout the process and asking the questions you may not know to ask. Hiring a real estate attorney can also give you clarity and peace of mind throughout the transaction. Hiring an attorney to review all agreements and contracts and assist in negotiations will ensure the maximum level of transparency and comfort for your clients and can also grant you the peace of mind that your transaction is legally sound and has been reviewed thoroughly by a professional.

A real estate attorney also has valuable experience and knowledge from working in the field that simply cannot be recreated. Our attorneys have the institutional knowledge of working daily in the industry and have their fingers on the pulse of the local and state laws. Especially for those of you with unique real estate situations, it’s important to have the legal support to mitigate any risks that could delay, if not jeopardize, your real estate purchase. Lastly, hiring a real estate attorney can also expedite the process of your transaction significantly. Hiring a Florida real estate attorney not only serves to protect each party’s interests but also expedites the entire process and helps to streamline the contract negotiation, the closing process, securing title insurance and communicating with lenders.

The Importance of Prevention in Real Estate Law and for Real Estate Agents

Often, we turn to lawyers as a last resort – after the contract has been signed, or when a dispute is already out of control. However, good legal advice is one of the greatest preventative measures a lawyer can provide. Not only can it save you money in the long run, but it can also save you from unpleasant difficulties later.

At The Orlando Law Group, you can be sure that your attorney possesses both a sharp, experienced legal mind, and a friendly smile that will welcome and comfort you. What’s more, we are serious about preventative legal tactics, working to solve issues for our clients before they blow up into legal messes. Simply put, we are here for you, and we have your back at all times!

A successful Florida residential real estate transaction is more than mere document preparation. Buyers and sellers alike may encounter any number of hiccups including, but most definitely not limited to, disclosures, financing, findings as a result of property inspections, dealing with property owner association requirements and title insurance.

As a real estate agent, it is wise to have a go-to Florida real estate attorney to ensure that you and your clients are protected and are properly informed when making pertinent decisions. While conducting a residential real estate transaction in Florida, only an attorney can provide legal guidance and advice that is truly in your best interest.

Legal Connections in Real Estate – Why Hire a Full-Service Firm?

  • Diverse Clientele: Our firm provides legal assistance to a wide variety of clients with different needs and preferences, meaning our team is well-equipped to handle the specificities of your situation.
  • Multiple Perspectives: If your attorney needs an objective perspective from a different legal professional, they can get that from within the firm. You can’t get that kind of flexibility from a boutique lawyer, who would have to hire another attorney for a second opinion.
  • One-Stop-Shop: At The Orlando Law Group, we work as a team in all endeavors. With each attorney having experience in a multitude of fields, we can provide a comprehensive solution for our clients.
  • Flexibility and Creativity: As a full-service firm, each member of our team has a diverse skillset and base of knowledge. With these assets, we are able to navigate through each case with flexibility and provide creative solutions for our clients.
  • Adaptability: Like many industries, the legal world is subject to change and improvement over time. New laws are created, and we are responsible for understanding the fine details on how they affect our clients. What makes us successful is our ability to learn these new laws and understand how they apply to current and future clients.

A legal challenge can easily stretch across multiple practice areas. Real Estate Law, for example, can stretch into business law, family law, and estate planning quite easily. As a full-service firm, we are well-equipped to tackle any legal challenge involving real estate, regardless of how many other disciplines the challenge involves. We offer a wide range of services to meet the needs of the Florida real estate community, whether it be for residential or commercial real estate. Here are a few examples of some connections real estate law can have with other areas of law:

  • Family Law: A divorce or separation can often involve complex real estate transactions or the division of assets, including property.
  • Probate Law: When a person passes away, you may find yourself in a situation where the deceased person owns a piece of property and the heirs of that person want to sell it, but probate must be administrated prior to this occurring.
  • Business Law: Business law can easily relate to real estate law when commercial property transactions are involved, or a business is buying or selling a property.
  • Civil Litigation: In some situations, disputes cannot be fully solved through negotiation and may require complex civil litigation to address.

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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Due Diligence in Real Estate – What Is It, and Why Is It Important to Understand?

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When you are purchasing a new home, piece of land or commercial property in Florida, it’s a good idea as a real estate buyer to have a lawyer helping you. Your goal as a homebuyer is to get what you paid for. Real estate can be highly complex, especially when dealing with a commercial property, and a good real estate attorney can be an invaluable asset in ensuring that your real estate transaction is an overall success. Your real estate lawyer will help prepare and negotiate a purchase agreement, help you through the buyer’s due diligence inspection period, and then review deed, title insurance commitment and other closing documents your behalf, to ensure that everything that is being done throughout the transaction is in your best interest. What Is the Due Diligence Inspection Period in Real Estate? The due diligence period in a real estate contract is defined as a buyer’s obligation to thoroughly investigate a property within a specified time to determine whether the buyer remains satisfied with the property before finalizing the purchase. In real estate, due diligence includes reviewing documents and contracts, thoroughly inspecting the property, and evaluating risks associated with a property or piece of land prior to purchasing. It is basically “doing your homework” prior to purchasing. When conducting a real estate transaction, the due diligence period typically starts as soon as a purchase and sale agreement has been accepted by both the buyer and seller, and all necessary escrow deposits have been made. During the due diligence period, it is the responsibility of the buyer to conduct all necessary inspections and review all important documentation to ensure that the property they are looking to purchase is without major defects and that they are getting their money’s worth. A good real estate attorney can assist you in preparing and negotiating a contract for purchase of the real property that includes a due diligence inspection period with broad wording to allow you to check for obvious, or patent, and non-obvious, or latent defects. For reference, a patent defect in real estate refers to a flaw, dangerous condition, or other deficiency which is reasonably apparent to an ordinary person and can be seen with the naked eye. For example, if you walked into a house and saw immediately that the house is filled with water due to a leak, that would be considered a patent defect. In contrast, a latent defect refers to a hidden or concealed defect; one which could not be discovered by any ordinary person inspecting the property. One of the most common latent defects which has become a hot topic in recent years is hidden asbestos in the ceiling of a property, which can be highly dangerous if not discovered. Patent or latent defects can be located in the real property itself, land, air or water. They could be environmental, structural, mechanical, electrical, or otherwise. It’s important to inspect the property for all areas where there could be defects prior to buying. The Due Diligence Period in Residential Real Estate Versus Commercial Real Estate There is an ancient Latin saying, “Caveat Emptor,” which means “Let the buyer beware.” This saying means that the seller was not obligated to tell the buyer about defects known by the seller. Essentially, this term places all responsibility to inspect a property for potential defects with the prospective buyer. With regard to residential real estate, this ancient rule no longer applies. As such, a residential real estate purchaser is not necessarily required to inspect a home prior to purchasing. However, as a residential homebuyer, it is still important to inspect a property prior to purchasing to ensure that your property is without defects, which will save you valuable time and money (and not to mention a headache) down the road. For instance, sellers are not obligated to tell you about defects they are not aware of. Thus, if you fail to inspect the property before purchasing, you may discover something the seller didn’t catch, forcing you to try to fix the defect yourself, with your own wallet. There are also cases where a seller may not be entirely truthful about the condition of a property, in the hopes of selling the property faster or for a higher price. Don’t leave your destiny in someone else’s hands by choosing not to have your property inspected prior to purchasing, and make sure to consult a real estate attorney who will look our for your best interests during the due diligence period. However, the principle of “Let the buyer beware” still applies in Florida to commercial real estate. Furthermore, there are also many more regulations and laws associated with commercial real estate. This is because commercial real estate properties are used to make a profit and thus involve tenants or employees, and so it’s incredibly important that commercial properties be structurally sound and safe for their inhabitants. It is also important to note that while residential real estate purchasers have several consumer protection laws and remedies available to them in case of an undiscovered defect, commercial property purchasers are afforded far less leeway. As such, it is even more important for commercial real property buyers to do their due diligence inspections, and thus equally important for commercial real property purchasers to enlist the help of a seasoned commercial real estate attorney. 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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Planning to Buy or Sell Your Unit Within a Community Association? You’ll Need an Association Estoppel

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Most owners in Florida know that when they want to buy or sell their unit or house that they need to contact the community association, or its attorney, to get an estoppel letter.  Both the Florida Condominium Act and Florida Chapter 720 regarding homeowners’ associations specifically devote sections to estoppel letters a/k/a certificates of assessments. See 718.116(8) and 720.30851.

First, what is an estoppel, and what does the term “estoppel” mean?

In the broad legal sense, an estoppel is “the principle that precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination.” You can essentially think of it as a fact checker which prevents someone from asserting something differently than what was previously stated. This concept is particularly important in real estate; specifically in the business of buying and selling real estate.

It is key to note that there are two main types of real estate: commercial and residential. Commercial real estate is any property that is used for business purposes, whereas residential real estate refers to any property that is used for housing or living purposes.

Commercial Real Estate

Commercial real estate can encompass a large range of properties, including offices, retail stores, restaurants, franchises, hotels, warehouses, and factories. These properties are typically used for business purposes, such as for selling products or providing a service, although they can also be used for housing purposes, such as a commercial housing development.

Residential Real Estate

Residential real estate typically refers to single-family homes, townhouses, and condos. These properties are generally used for housing purposes, although they can also be used for business purposes (such as a work-from-home office).

If a residential property is located within a community association like a homeowner’s association (HOA) or a condominium owner’s association (COA), an association estoppel is a requirement for issuing a title policy on all association-governed homes because the information it contains can impact interest in the property.

But what is an estoppel letter/certificate, and why is it important to me?

An estoppel certificate is a letter from the association that states any amounts due and owing for fees and/or assessments for a particular unit or house that is valid for 30 days from the date of the letter. The reason it is important is that once you purchase the property, you become liable for all past and present debts on that property.

Although there is no statutory form of an estoppel letter or form, §720.30851 Fla. Stat. requires that the certificate be signed by an officer or authorized agent of the association stating all assessments and other moneys owed to the association by the parcel owner or mortgagee with respect to the parcel. However, it is good practice to include or request within the estoppel letter/certificate: the name of the association; the name of the unit/parcel owner; description of the property; the total amount owed to the association; the date through which that total amount is owed; instructions on where to send the payment and signature of an officer of the association or authorized agent. Typically, title companies will have their own standard form that they use specifically for estoppels, which they will want filled out along with the estoppel letter/certificate.

Upon request of the estoppel letter, the homeowners’ association may charge a reasonable fee for the preparation of the letter, however, an interesting caveat of §720.30851(3) Fla. Stat. states that if the certificate is requested in conjunction with the sale or mortgage of a parcel, but the closing does not occur and no later than 30 days after the closing date for which the certificate was sought the preparer receives a written request, accompanied by reasonable documentation, that the sale did not occur from a payor that is not the parcel owner, the fee shall be refunded to that payor within 30 days after receipt of the request. The refund is the obligation of the parcel owner, and the association may collect it from that owner in the same manner as an assessment as provided in this section.

As with any legal transaction, knowledge is power. According to Movement Mortgage, approximately 1,000 people move to Florida each day. Many of those people come from areas that do not have homeowners’ associations and new Florida residents are often surprised to learn that even though the homeowner may be up to date on their mortgage payments, that failure to pay homeowners’ fees and assessments can lead to foreclosure as well, regardless of your current mortgage status.

If you are considering purchasing property governed by and located within a homeowners’ association or if you already own a home within a homeowners’ association and find yourself in need of legal advice regarding a dispute with the association, the knowledgeable attorneys at The Orlando Law Group, PL can help. The attorneys at The Orlando Law Group also have ample experience preparing estoppels ourselves, and if you are a Board member, we may be able to assist your Association in preparing estoppels for properties within your Community Association.

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 Orlando Law Group’s Jennifer Englert Named a 2023 Women Who Means Business

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OLG founder’s entrepreneurial spirit recognized in annual awards contest

It is no secret The Orlando Law Group’s founder Jennifer Englert is a woman who means business. As such, this year the Orlando Business Journal is recognizing her as one.

Englert is one of 21 women being recognized by the publication for accomplishments in business and the community. The list includes some of the most accomplished women in Central Florida.

“There are so many women who are deserving of this award throughout our region I am just honored to be a part of this year’s class,” Englert says. “The impact of women, especially the women who join me this year, can not be underestimated in manner.”

Englert founded The Orlando Law Group in 2009, initially being a firm that would be a home for women lawyers. The firm now employees several male attorneys, but still takes pride in being a firm focused on the entire life of an attorney, not just the billable hours.

In addition, Englert is an owner of several companies separate from the law firm, including a title company, a company focused on energy-efficient lighting and a company focused on workforce issues in the manufacturing industry.

According to the announcement in the Orlando Business Journal, “These individuals have gone above and beyond in their respective roles, driving business success, industry growth, workforce development and community advancement. The honorees are executives based in Central Florida who were selected due to their business accomplishments, community involvement and personal.”

One of Englert’s strengths was her work in the community serving in the following roles in the community, in addition to helping found the East Orlando Chamber Foundation:

  • Seminole County Chamber: chair-elect and pro bono legal counsel
  • East Orlando Chamber of Commerce: board member and pro bono legal counsel
  • Avalon Park Kiwanis: vice president
  • Matthews’ Hope: board member and legal counsel
  • United Against Poverty: board member
  • Greater Orlando Builders Foundation: vice president
  • Orlando Health Foundation: board member
  • Innovation and Entrepreneurship Program at Full Sail University: advisory council member.

“From the start of The Orlando Law Group, I have found the more you help the community improve, the more your business will be successful,” Englert says. “I encourage anyone in business to find their passion and use their skills to help others.”

The full list of 2023 Women Who Mean Business can be found here. Orlando Business Journal will be recognizing them at an event on March 30 and running a special section featuring all of the women in its March 31 edition.

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For more information, contact Alan Byrd, Alan Byrd & Associates, 407-415-8470, [email protected]

About The Orlando Law Group: Founded in 2009, The Orlando Law Group is a full-service law firm with 11 attorneys in four offices in Orlando, Winter Garden, Altamonte Springs and Lake Nona. The firm specialized in a broad range of practice areas specifically for individuals and businesses, particularly on business law, family law, personal injury law, personal finance and estate planning law and much more. For more information, please visit TheOrlandoLawGroup.com

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Can I use Steamboat Willie in my Marketing?

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Right before the New Year, the New York Times wrote an extensive article about Mickey Mouse and how the copyright for the historic Steamboat Willie will most likely expire at the end of 2023.

When that happens, the Steamboat Willie version of Mickey Mouse will become public domain, meaning anyone can use that version of the cartoon character and the film without paying any licensing fees.

Of course, nothing is settled in stone. The last time this issue came up, the Walt Disney Company worked with Congress to extend copyright protections by 20 years.

Most businesses cannot just convince Congress to change the rules on copyrights. So, this is a great case to watch as this issue unfolds. It is a good way to understand how people can and cannot use your logo, your graphics, your mascot, your company name.

And it is a great reminder to check with The Orlando Law Group for a review of all your intellectual property has the right protections to keep your brand pure.

The Orlando Law Group can help entrepreneurs and business owners in in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Sanford, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida with all their intellectual property issues, along with any other general business issues.

Let us give a quick overview of intellectual property protections.

First, it is critical to understand the differences between the different types of intellectual property protections. They are often confused with each other, even though all of them can be critical for your long-term success.

For a more detailed look at the difference between trademark and copyright, please review this article we shared a few years ago.

A copyright protects first use of art

Maybe you wrote a jingle for your business or commissioned a painting of your restaurant. Maybe you created a cartoon character mascot. Those are all covered by copyright laws. They are original art and cannot be used by a third-party for profit.

When it is produced, there is a copyright applied, but you must register the copyright with the federal government for The Orlando Law Group to fight to receive any protection from the courts.

A patent protects an invention

If your company has developed the next big thing, you will need to file for a patent. This protects your product, your chemical reaction, your advancement on the widget and much more.  To receive a patent, you will need to show that your invention is “new, unique and usable.”

A trademark protects your brand

Here is where you protect your name and your logo, your company colors and more. The goal with this type of protection is to avoid confusion by consumers and eliminate companies basically calling themselves the same name.

One of the difficulties with trademarks is there are two types of trademarks: word marks and design marks. The word mark protects your name. The design mark protects your logo. Both can be essential.

What do I need to do to protect my brand?

There are a couple of things you can do to protect your brand, especially when you are first starting your business. One of the things we do for any new business is do a search for trademarks, especially when naming restaurants.

The United States Patent and Trademark Office makes a basic search relatively simple through the TESS database. Performing an individual search can give you basic information, but it is still critical to have an attorney review the results. After all, there are 35-word marks for “Mickey Mouse.” Not all will apply to you and there may be an opportunity for you to use your dream name, even if it appears in TESS.

Of course, if your name is already trademarked in your industry, do not use it. Chances are, you will have to rename your business down the road.

Once you have applied, it is important to aggressively defend your protection. Often times, a simple demand letter can stop the possible infringement. Sometimes you will need to file a lawsuit for protection.

The key here is that you are showing others – especially future courts – this is your brand and you will protect it. The longer you allow others to use your brand, the easier it is for that person to claim it is in the public interest.

You do not want that to happen!

That is why you see so many companies being very active in protecting their trademarks. Just look up “trademark lawsuit” by just about any company and you will find multiple news reports of lawsuits.

Of course, this also means that if you want to get close to an established trademark, you are going to be prepared for a fight. Here is an example of where Apple sued just about anyone who tried to file a trademark using an apple. In fact, they filed objections to 215 trademark filings that were close to the logo of the iPhone.

They are counting on people not fighting back.

But that is what The Orlando Law Group is here for. We will fight to protect your company’s intellectual property, from filing for protection and to protect your brand.

And if you want to use Steamboat Willie in your 2024 marketing campaign within the legal format, we will fight for your right to do just that!

If you are looking to protect your intellectual property in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Sanford, Lake Nona, St. Cloud, or Kissimmee, we are here to help you with a full team of attorneys who care about you and your business and will work for the best possible outcome.

If you would like to schedule a consultation for a business issue like the ones described earlier, this information is in case you ever find yourself or a loved one needing to use it.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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Miya’s Law, Decreased Workers’ Comp Rates and Minimum Wage Increase – Florida Legal Changes for Business Owners to Look Out For in 2023

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Happy new year to all of our wonderful clients, team members and more! The coming of a new year brings with it excitement, new beginnings, and perhaps most importantly, many changes. With the dawning of the year 2023, there are many key changes to Florida state law which took effect on January 1.

Several of these changes are likely to affect business owners in a variety of ways.

As a business owner, it is important for you to have knowledge about these changes and understand how these changes may affect you and your business in the new year. Read on to learn more about what specific changes will be taking effect, and how these changes may affect your business.

Disaster Assistance:

In response to the devastating 2021 collapse of the Champlain Towers South building in Surfside, Florida, state lawmakers authorized the refund of ad valorem taxes, more commonly known as property tax rebates, when residential properties are rendered uninhabitable for a minimum of 30 days by disasters.

During the December special session, state lawmakers also passed SB 4-A to make similar property tax rebates available to property owners who sustained damage in Hurricane Ian and Hurricane Nicole this past Fall.

Read the full text of SB 4-A here: https://www.flsenate.gov/Session/Bill/2022A/4A.

How does this change affect my business?

If your business suffered damage during Hurricane Ian or Hurricane Nicole this past Fall, you may be able to receive a tax refund. Property owners will be able to apply to county property appraisers between January 1 and April 1, 2023.

Property Insurance:

During the December special session, Florida lawmakers approved the end of the assignment of benefits for property insurance, which has long been considered controversial. The practice of the assignment of benefits has homeowners signing over claims to contractors, who then pursue payments from insurers.

Essentially, part of a policyholder’s insurance benefits is transferred to a third-party. Insurers have long argued that this practice leads to unnecessary repairs being performed along with increased repair costs, as well as increased litigation costs, which, all together, then lead to higher insurance premiums.

Read the full text of SB 2-A here: https://www.flsenate.gov/Session/Bill/2022A/2A

How does this change affect my business?

Business owners will no longer be able to utilize the practice of the assignment of benefits, which could lead to lower insurance premiums. This change could particularly impact those in the business of commercial real estate or landlords. The prohibition on assignment of benefits (SB 2-A) will apply to policies issued on or after January 1, 2023.

Workers’ Compensation Rates:

An average 8.4 percent decrease in workers’ compensation insurance rates is taking effect this January, making this the sixth consecutive year that average workers’ compensation rates have decreased.

How does this change affect my business?

This change is a positive one for business owners, as it means lower insurance costs for employers.  The decrease applies to both new and renewal workers’ compensation insurance policies effective in Florida as of January 1, 2023.

Miya’s Law:

Earlier this past year, Florida lawmakers passed a law (SB 898) that requires apartment landlords to conduct thorough background checks on all employees. Employees must also maintain a system for handling and logging the issuing of keys.

The bill is referred to “Miya’s Law” in honor of 19-year-old Miya Marcano, a student who went missing from her Orlando apartment in September of 2021 and was found dead a week later. The killer worked as a maintenance worker at Marcano’s apartment complex.

Read the full text of SB 898 here: https://www.flsenate.gov/Session/Bill/2022/898

How does this change affect my business?

This change will affect commercial real estate business owners and landlords in general. Landlords will need to conduct thorough background checks on all employees and ensure there is a system in place for the handling and issuing of keys, to secure the safety of their tenants.

Minimum Wage Increase:

In November of 2020, Florida voters approved increases to the state’s minimum wage, which will gradually increase from the current $8.65 an hour to $15 an hour by September of 2026. To comply with the law, employers must follow the below hourly wage schedule for non-tipped employees:

Effective Date

January 1, 2021

September 30, 2021

September 30, 2022

September 30, 2023

September 30, 2024

September 30, 2025

September 30, 2026

Florida Minimum Wage

$8.65

$10.00

$11.00

$12.00

$13.00

$14.00

$15.00

How does this change affect my business?

While this change will not directly affect your business until September 30, 2023, it is important for business owners to plan for increasing their wages for non-tipped employees to $12.00 an hour on that date.

Uniform Commercial Code:

Bill SB 336 updates portions of the Uniform Commercial Code, or UCC. The UCC is “a set of laws, adopted by all fifty states, governing and providing uniformity in commercial transactions in the United States.” This bill protects the free transfer of certain business interests, exempting ownership and parts of ownership interest.

Read the full text of SB 336 here: https://www.flsenate.gov/Session/Bill/2022/336

How does this change affect my business?

This change should be a good one for business owners as it hopes to remove potential conflicts with Article 9 of the UCC, which “governs secured transactions, meaning transactions involving the granting of credit secured by personal property (‘collateral’), where the creditor may take possession of the collateral if the debtor defaults on the loan.” Essentially, this change protects the transfer of business interests.

Electronic Filing of Taxes:

Lawmakers have approved a bill which would lower Florida’s tax filing and payment threshold in 2023, in the hopes of creating more cost savings and cutting down the number of papers returned and checks received. Currently, taxpayers must “file returns and remit payments electronically when the amount of taxes paid in the prior state fiscal year was $20,000 or more.” With the new law, the payment threshold will be lower to $5,000 or more.

Read the full text of SB 2514 here: https://www.flsenate.gov/Session/Bill/2022/2514

How does this change affect my business?

This should be another good change for business owners, as it will make it easier for business owners to file their taxes electronically.

The attorneys at The Orlando Law Group represent both experienced and new business owners throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida. Whatever your level of business experience, the lawyers at The Orlando Law Group are here for you.

If you are dealing with a business issue or looking for some preventative business 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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Independent Contractor Laws Changing this Year (2023)

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During the pandemic, our country saw a shift from the traditional 9 -5 employees to the gig economy, with companies looking at hiring independent contractors instead of employees.

We have seen entire companies, like Uber and Lyft, where the business model is structured with independent contractors. But we also see businesses utilize independent contractors for CFO positions, for marketing, public relations and for sales.

For both parties, the independent contractor relationship can be beneficial. For individuals, it provides freedom for work. An independent contractor can work when they want and for who they want. There is very little control the company can exert over the independent contractor.

From a business perspective, the tax burden is significantly lower as you do not withhold any taxes or pay any employment taxes, and the independent contractor is responsible for equipment, such as computers and phones.

While there are advantages, a miscalculation can be serious. If you treat an independent contractor like an employee, you could be responsible for a significant payout for wages and taxes if the contractor decides to take the case to court.  The state can also pursue your business for other fees.

It is always better to take preemptive steps to ensure the people working for your business are properly classified. We urge you to have The Orlando Law Group review your contractors and their duties to make sure they are within the current law. We will create contracts that outline the responsibilities of each party and the goals of the contract. We will create an employee manual that covers the difference between the employee statuses and will provide rules to the extent that you can for contractors.

Unfortunately, however, what determines who is an independent contractor has changed significantly over the past couple of years by the United States Department of Labor.

The Orlando Law Group is carefully watching these developments to make sure our clients are protected. If you need help with independent contractors in Orlando, Winter Garden, Altamonte Springs, St. Cloud, Kissimmee, Sanford or throughout Central Florida, we are here to help you with a full team of attorneys who are business owners themselves.

In March 2021, the federal government issued new rulings detailing a set of factors that come into play when determining whether a worker is an employee or an independent contract. However, case law in this issue has been set over decades of cases that the federal government needs to look at the totality of the case and that all factors are equal.

The current orders give precedence to some factors over others. Shortly after issuing the new regulations, they realized it would be confusing for businesses and would take years to get new case law that allows for some factors to have more importance than others.

The result? New regulations will be enacted in some format during 2023.

One thing that has not changed is the overriding theme of what constitutes an employee or an independent contractor: economic dependence is the ultimate inquiry for determining whether a worker is an independent contractor or an employee.

This year, the Department of Labor has proposed six factors, all being held equally in an “Economic Reality Test.” The factors are:

  1. Opportunity for profit or loss. If the individual can control its profit or loss based solely on the skills, management and initiative of the individual. For instance, an independent contractor can hire others to do the work in the contractor. An employee cannot.
  2. Investments by the Worker and the Employer. This is straightforward. If the company is providing the equipment and other items needed to complete a job, like design software for a graphic artist, the individual is an employee. An independent contractor provides their own tools for their work.
  3. Degree of Permanence of the Work Relationship. Is the relationship temporary or indefinite? For employees, there usually is no end date and can be terminated at any time by either party. Usually, an independent contractor is only engaged for a specific period.
  4. Nature and Degree of Control. The new rule could be very specific for this one. Do you have substantial control over things like “setting schedules, selecting projects, controlling workloads, and affecting the worker’s ability to work for others?” If so, the person is an employee, not an independent contractor.
  5. The Extent to Which the Work Performed is an Integral Part of the Employer’s Business. It’s difficult to say what is truly integral to the company business, but you could think of it as if you removed the employee from the company, how detrimental it would be to your bottom line and the ability to produce.
  6. Skills and Initiative. Does the work performed by the individual require specific skills and training? If so, do you provide that training to the individual? If you do, chances are that person is an employee, not an independent contractor.

While the federal government has ended public comment, these are not the final rules and they could change when the Department of Labor issues the final rulings. It is important for you to know the regulations on this subject are changing and you should be prepared to make any adjustments.

You can read significantly more details about the proposed rule change in the Federal Registry here. But, that is what The Orlando Law Group does for its clients.

The attorneys at The Orlando Law Group represent business clients in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, Sanford, St. Cloud, Kissimmee, and throughout Central Florida.

If you have a question about your employees and whether they are independent contractors, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both businesses and individuals alike.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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Avoid the Scammers in Immigration

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If you’re in the immigration process, you know the system is very tricky and can be confusing. Trying to get information from a government agency often seems futile. The forms to fill out can be more than three dozen pages long.

As such, the number of people looking to prey on that confusion is limitless. It’s very difficult to distinguish between people who are legitimate and those who are just trying to get as much money from you as possible.

Many people do not realize how bad the situation is until they receive that notice to appear for removal proceedings before an immigration judge because the forms they signed were not correct or a clear law was not followed. By hiring someone who is only out for your money, you could be tagged for removal even if you should qualify for a green card or work authorization.

The moral of the story is, make sure that you are using a knowledgeable attorney who has experience, and is someone that you can trust. Here are a few things to look out for when seeking professional assistance with your immigration matter:

  1. Make sure that the person you are meeting with is a licensed attorney not subject to any disciplinary proceedings. Ask for the attorney’s bar number and state/territory they are licensed in so you can look them up to make sure they are actually licensed and not subject to any disciplinary proceedings. If they are not a licensed attorney in good standing with their state bar or an accredited representative, they are not authorized to assist you with your immigration case. You can also check the Executive Office for Immigration Review (EOIR) list for all disciplined practitioners.
  2. Review the forms before signing and never sign a blank form. Make sure that you see the forms being submitted on your behalf before they are submitted. If you need a translator, ask for one or bring your own. Never sign a blank form or a blank piece of paper as you may not know what is submitted on your behalf and it could negatively impact your case.
  3. You should never be charged for the form itself. It’s OK to be charged for filing fees and for an attorney’s time to prepare forms, but you should never be charged for the actual form itself. This is a sign you are dealing with someone who is looking to take advantage of you. All forms are available online for free.
  4. Get a receipt for any payment made. If you think you were scammed, this is an essential piece of evidence for your case.
  5. Do not let your attorney keep your original documents. The attorney should always make copies of your personal documents, such as a passport or driver’s license, while you keep the original documents. If an original is needed, the immigration official will ask to see it at an interview or hearing. Do not submit originals.
  6. Do not trust anyone who claims to know about secret laws. Any new laws or regulations are public and all legitimate immigration attorneys will be up to speed on any new laws.
  7. Do not pay to be put on a waiting list: There is no such thing as a “waiting list,” but it sounds legitimate. It is not.
  8. Track your case. It’s important to understand immigration cases take a long time, but you can track your case with the U.S. Customs and Immigration Services. Your attorney will provide a receipt notice from the agency that can be used to see your status at USCIS.gov. Plus, if you are in removal proceedings, there is a hotline that can be used to track the status of your case and to see when you have your next hearing date.

If you try to use these and nothing comes up and the person you used to assist with your application or who says they are representing you in Court does not answer your calls within a reasonable amount of time (at least a week), you may need to get a second opinion.

  1. Watch out when using a notario publico. In many countries, the use of a notary public or notario publico is almost the same as using a lawyer. That is not the case in the United States. These individuals will charge excessive fees and could even subject you to removal from the United States.

Unfortunately, many people have been harmed by the use of notaries. They thought they were doing the right thing because it was an individual they trusted or they heard of someone who was able to get a work permit. They did not get a work permit and ended up in removal proceedings because an asylum application was filed or other type of application that the person did not qualify for.

One of the key issues is cost – but if the cost seems to be too good to be true, it almost always is. Yes, an attorney costs more upfront than a notario or another scammer.

However, in the long run, getting a competent Immigration attorney to assist you will save you money as you will need to pay for an attorney to fix the mess that is made, if it is fixable.

Remember, you do get what you pay for. Don’t become a cautionary tale. Many law firms will provide payment plans to assist those on a budget. Don’t let the cost of representation push you into making a decision that could negatively impact the rest of your life.

The attorneys at The Orlando Law Group represent immigration clients in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, Sanford, St. Cloud, Kissimmee, and throughout central Florida.

If you have a question about your Immigration case or whether you may have any immigration benefits available to you, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both businesses and individuals alike.

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 to discuss your case. 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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Immigrating to Central Florida after your Vacation

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Every year, millions of visitors flock to Florida for vacation and for business. It’s one of the most popular destinations for travelers around the world. In Orlando, we’re the home to one of the world’s largest convention centers and, of course, a conglomeration of theme parks not found anywhere else.

If you’re a citizen of 40 countries listed here, you typically don’t need to get a visa to come for a short period to the United States as long as you register with the United States.

But for the rest of the world, a visa is required.

Like so many of us who already call Florida and Orlando home, many of the people who come to our city and state, like you, fall in love with the opportunities here, the natural beauty and the temperate weather. For them, The Orlando Law Group is here to help.

To be clear, there are processes that are required in this situation that everyone must follow and in no circumstance are we implying there is a way around those processes.

Of course, how an individual can turn a travel visa into a more permanent visa is extremely varied and unique to each person’s individual situation. Here are a few things to keep in mind.

  • If you are here from one of the 40 countries and are here on a waiver, you must return and work on your visa from your home country.
  • Almost all visas require you to apply and interview from your home country, so just staying in Orlando is not a good option
  • Always have the intention of returning to your home country. Yes, things may happen while you are here – you meet the love of your life or are offered a great job – but if the government thinks you were coming here to stay, you will be rejected.
  • Do not overstay your visa. Extending your visa is not that difficult compared to other immigration issues, but if you overstay your visa, you will almost certainly be denied any long-term solution.
  • Do not commit any crime while you are here, this includes things like driving under the influence or possessing narcotics, including marijuana.

So, let’s talk about some of the reasons why people want to say in the United States and how The Orlando Law Group can work to help their unique situation.

I met my soulmate while on vacation

Congratulations! It is truly wonderful to see people in love want to spend the rest of their lives together.

We certainly understand the desire to want to be together, it’s just important to understand that it takes time to ensure that it happens legally and without any complications down the road.

There could be an entire blog on how to get married to someone from another country as it is not an easy process like just showing up at the immigration office with a marriage license. Here’s a couple of key things you will need to know.

  • A K-1 visa, known as the “Fiancé Visa,” takes a long time to acquire. As of August 2022, the shortest wait time after you fill out the required documentation is around five months, extending to more than a year with some immigration facilities.
  • The start of the process is the I-129F form. It’s more than a dozen pages long and asks probing questions about you, your fiancé and even your parents!
  • You’ll need to compile a lot of documents, including a certificate from the police of any country you have lived for more than six months.

We often see couples who set a date for their wedding – they are excited to start this journey – only to find out it will take longer to settle the immigration process. We always recommend not placing any non-refundable deposits until you have at least started the process.

The U.S. State Department has a great – and long – list of what needs to be done to just acquire the fiancé visa here. As you can see, it is quite detailed, which is why you should reach out to The Orlando Law Group to help.

I was offered my dream job while on vacation

How exciting! Now, for the difficult part to ensure your visa is approved so you can move forward in your career.

Like most aspects of the law, it’s extremely difficult to directly say what you need to do without looking at your specific case. After all, there’s more than two dozen different types of visas that you may be eligible to receive to work in the United States.

Be sure to understand that you will need to return to your home country before moving to the United States and starting that job. Simply extending a tourist visa will not work. You’ll be subject to interviews at the consulate in your home country and will need to show you are maintaining a permanent residence in that country.

You’ll also need to have full support from your future employer. There are hoops they need to jump through as well to bring you to the United States. We advise you are open on your immigration status with a potential employer. We can help advise them too!

Finally, just like everything else in immigration, it’s not a quick process, although some consulates are faster than others. Your wait time could be more than a year to be processed in some places and with some visas. You can find a great tool to determine approximate minimum wait times at consulates across the world here.

I came for a convention and realized I need to expand my business into Central Florida

Orlando is often listed on many sites as being one of the premier places to do business in the world. Aside from the thriving tourism and entertainment industry, our community is also home to one of the top technology centers, along with the global capital of the modeling, simulation and training industry, supporting militaries worldwide. More than $6 billion flows through Orlando in that industry alone, every year.

Compared to other forms of immigration, expanding your business to the United States is significantly simpler. The United States wants foreign investment and job creation, so, in 1990, it created the EB-5 process to help promote this effort.

What does that mean for you? In its simplest terms, you’ll need to employ a minimum of 10 workers and invest at least $800,000 and you’ll be eligible for an EB-5 visa for your business and your family.

Now, there are other stipulations. There are new caps on EB-5 visas and the amount of money invested has changed very recently. Much of it is dependent on if you are investing in a targeted investment area.

Plus, while it is relatively simple, you cannot break the rules at the beginning of this article. If you overstay your visa and don’t follow the proper steps, you could lose your immigration status and any investment you made.

It’s critical to reach out to The Orlando Law Group, which has a practice devoted to business law in addition to our immigration practice.

If you are looking to extend a travel visa in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Sanford, Lake Nona, St. Cloud, or Kissimmee, we’re here to help you with a full team of attorneys who care about you and your circumstance and treat you with compassion while seeking the best possible outcome for you and your loved ones.

The attorneys at The Orlando Law Group represent clients in immigration in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Sanford, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you would like to schedule a consultation for immigration issues, this information is in case you ever find yourself or a loved one needing to use it.

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 to discuss your case. 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.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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HOA and COA Powers, Responsibilities and Rights During an Emergency: Emergency Powers for HOAs and COAs

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Reserve funds are a key financial asset for your association, and provide a valuable source of funding for costly repairs, replacements and emergencies. Despite the importance of this resource, many Condominium Owners Associations are unsure as to what is needed to fund their reserve. Specifically, this blog will address two (2) concerns:

(1) What is required to fund the reserve account; and

(2) Requirements imposed by the newly passed Senate Bill 4D condominium inspection law as well as recent amendments to a significant portion of Florida Statutes Section 718, and how these will impact the operation of Condominium Owners Associations here in Florida.

What Is Reserve Funding? What Is Required to Fund the Reserve Account?

Reserve Funding is essentially a savings account for your association used to save money for costly repairs and replacements of community property. Think of it as the Association’s piggy bank or rainy-day jar. Reserve funds are typically spoken of as being held in one of two ways: pooled reserves and non-pooled reserves. Pooled reserves are funding for multiple assets (roofs, sidewalks, etc.) that are combined into one general account from which all expenses are paid. Non-pooled reserves are when each asset has its own account dedicated to its repairs and upkeep. Funds cannot be transferred under a non-pooled reserve method. Reserve accounts are often found to be underfunded significantly for the amount that could and should be done to keep the association’s community property in good working order.

As of December 31, 2024, for items required to be included in a Structural Integrity Reserve Study (more on this briefly), an Association may no longer use those itemized reserve funds (or any interest accruing thereon) for other purposes, and an Association may only use those itemized reserve funds for their designated purposes. Essentially, the use of pooled reserve funds has been eliminated by the amendment of Florida Statutes Section 718.

Recently, the Florida Senate rewrote and amended a significant portion of Florida Statutes Section 718, including the portion regarding reserve funding or a lack thereof. Florida Statutes Section 718.112(2)(f)(2a) reads:

“The members of a unit-owner-controlled association may determine, by a majority vote at a duly called meeting of the association, to provide no reserves or less reserves than required by this subsection. Effective December 31, 2024, the members of a unit-owner-controlled association may not determine to provide no reserves or less reserves than required by this subsection for items listed in paragraph (g).”

Paragraph g of the Florida Statutes Section 718.112(2) as noted by the above section states: An association must have a structural integrity reserve study completed at least every 10 years after the condominium’s creation for each building on the condominium property that at a minimum, inspects the roofs, load-bearing walls or other primary structural members, floors, foundations, fireproofing and fire protection systems, plumbing, electrical systems, waterproofing and exterior painting, and windows.

So how may an Association Board go about changing their reserve funding? The board must present a proposed budget to the community assuming full reserve funding. For instance, let’s say an association seeks to reduce or waive their current reserve funding. The association cannot hold a vote to waive or reduce reserve funding until after a proposed budget with full reserve funding has been provided to the membership. If the board would like to put a vote on the table to reduce or waive reserves funding, then they should provide (along with the proposed budget which must be distributed 14 days prior to the budget meeting): (1) a second budget with waived or reduced reserves and (2) a limited proxy to be filled out by unit owners specifically requesting the membership to vote on the second budget. The proxy must include the following wording per Florida Statutes:

“WAIVING OF RESERVES, IN WHOLE OR IN PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE ITEMS.”

To successfully reduce or waive reserve funding, a majority of the membership (i.e., 51% of unit owners) must vote in favor of the reduction/ waiver. If by the time of the budget meeting arrives the association has received insufficient votes, the board may delay approving the budget to attempt to collect more votes. If a majority vote is not obtained, the board must approve the budget with full reserve funding. If a majority vote is obtained, the board must proceed with the waived or reduced reserve funding. It is important to note that any vote to waive or reduce reserves is only effective for one annual budget. Therefore, the vote must be obtained for every year the board would prefer not to fully fund reserves.

Senate Bill 4D

Senate Bill 4D was passed as a response to the tragedy in Surfside, Florida that occurred last year when a condominium building collapsed after a long history of maintenance problems and shoddy construction techniques. Senate Bill 4D was effective as of 05.26.2022 and entered fully into Chapter 2022-269 as of 06.29.2022, and the general bill reads as follows:

“Building Safety; Providing that the entire roofing system or roof section of certain existing buildings or structures does not have to be repaired, replaced, or recovered in accordance with the Florida Building Code under certain circumstances; requiring condominium associations and cooperative associations to have milestone inspections performed on certain buildings at specified times; authorizing local enforcement agencies to prescribe timelines and penalties relating to milestone inspections; revising the types of records that constitute the official records of a condominium association; prohibiting certain members and associations from waiving or reducing reserves for certain items after a specified date, etc.”

Specifically, a few sections should be noted to be of great importance with regard to the upkeep of the condominium buildings. Section 3 of Section 55.3899(2)(b) was added to define “substantial structural deterioration”. It defines substantial structural deterioration as distress that negatively affects a building’s general structural condition and integrity. But it does further note that the term does not include surface imperfections such as cracks, distortion, sagging, deflections, misalignment, signs of leakage, or peeling of finishes unless a licensed engineer or architect performing inspection determines that such surface imperfections are a sign of substantial structural deterioration.

Further, concern has been expressed regarding the new “milestone inspection” requirement laid out by Senate Bill 4D. This Senate Bill does not require milestone inspections for condominium and cooperative buildings two stories or less. Per the latest revisions by the Florida Senate to Florida Statutes Section 718, condominium and cooperative buildings three stories and over must receive an inspection within a certain time frame that meets the new milestone inspection requirements for structural integrity. Those that are two or one story do not have to follow the set year inspection requirements, but one should be aware that lawmakers and legislators are looking closely at the condition of condominium buildings when it comes to resident safety.

However, as to balconies specifically, if the balcony is supported by items that hold general structural integrity, they are considered under the list to watch for substantial structural deterioration. If left unfixed and without inspection and a balcony structure fails or an individual is injured while the Board of Directions and Community Association Manager is aware of potential substantial structural deterioration regarding the balconies, then such a failure is a breach of an officers and directors’ fiduciary relationship to the unit owners under Florida Statutes Section. 718.111(1).

The attorneys at The Orlando Law Group represent condominium owners as well as COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

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 to discuss your case. 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.

In Florida, it is common for homeowners or condominium owners to live in a community with a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA, respectively. Associations are commonly found in housing or property developments where people share a common area or amenities, such as:

  • Planned or private neighborhoods.
  • Subdivisions.
  • Gated communities.
  • Condominiums.
  • Townhome complexes.
  • Apartment buildings.

While the overall goal of most HOAs or COAs is to improve living standards within the community and maintain or increase property values, part of an HOA or COA’s responsibilities also include protecting the health, safety and welfare of the community which they serve. This mission is sometimes put to the test when an emergency situation arises within the community, such as during a natural disaster, during a health crisis such as a pandemic, or during a time of civil unrest. To include some more recent examples, many local HOAs and COAs faced challenges as to how to provide a proactive yet effective response during the COVID-19 pandemic and, more recently, during Hurricane Ian.

Certain emergency situations may call for a rapid response and thorough preparation from the HOA or COA in order to safeguard the wellbeing of the community. To this end, an Association’s ordinary powers can sometimes be expanded during times of emergency. These expanded powers are typically referred to as “emergency powers,” and can serve as a key source of guidance and leadership during crises.

The authority of HOAs and COAs to enforce their rules and regulations is rooted in statutory authority. Chapter 720 of the Florida Statutes empowers and controls the ability of HOAs to enforce their rules in Florida, whereas Chapter 718 of the Florida Statutes empowers and controls the ability of COAs to enforce their rules in Florida. In regard to the issue of emergency powers for HOAs and COAs, Florida Statute 720.316 provides guidance as to HOAs, while Florida Statute 718.1265 sheds light on powers for COAs.

As to emergency powers for HOAs, Florida Statute 720.316 states, in summary:

(1) To the extent allowed by law, unless specifically prohibited by the declaration or other recorded governing documents, and consistent with s. 617.0830, the board of directors, in response to damage or injury caused by or anticipated in connection with an emergency, as defined in s. 252.34(4), for which a state of emergency is declared pursuant to s. 252.36 in the area encompassed by the association, may exercise the following powers:

(a) Conduct board meetings, committee meetings, elections, or membership meetings, in whole or in part, by telephone, real-time videoconferencing, or similar real-time electronic or video communication after notice of the meetings and board decisions is provided in as practicable a manner as possible.

(b) Cancel and reschedule an association meeting.

(c) Designate assistant officers who are not directors.

(d) Relocate the association’s principal office or designate an alternative principal office.

(e) Enter into agreements with counties and municipalities to assist counties and municipalities with debris removal.

(f) Implement a disaster or an emergency plan before, during, or following the event for which a state of emergency is declared, which may include, but is not limited to, turning on or shutting off elevators; electricity; water, sewer, or security systems; or air conditioners for association buildings.

(g) Based upon the advice of emergency management officials or public health officials, or upon the advice of licensed professionals retained by or otherwise available to the board, determine any portion of the common areas or facilities unavailable for entry or occupancy by owners or their family members, tenants, guests, agents, or invitees to protect their health, safety, or welfare.

(h) Based upon the advice of emergency management officials or public health officials or upon the advice of licensed professionals retained by or otherwise available to the board, determine whether the common areas or facilities can be safely inhabited, accessed, or occupied.

(i) Mitigate further damage, injury, or contagion, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the common areas or facilities or sanitizing the common areas or facilities.

(j) Levy special assessments without a vote of the owners.

(k) Without owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association if operating funds are insufficient.

As to emergency powers for COAs, Florida Statute 718.1265 states, in summary:

To the extent allowed by law, unless specifically prohibited by the declaration of condominium, the articles, or the bylaws of an association, and consistent with s. 617.0830, the board of administration, in response to damage or injury caused by or anticipated in connection with an emergency, as defined in s. 252.34(4), for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the condominium is located, may exercise the following powers:

(a) Conduct board meetings, committee meetings, elections, and membership meetings, in whole or in part, by telephone, real-time videoconferencing, or similar real-time electronic or video communication with notice given as is practicable.

(b) Cancel and reschedule any association meeting.

(c) Name as assistant officers persons who are not directors.

(d) Relocate the association’s principal office or designate alternative principal offices.

(e) Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal.

(f) Implement a disaster plan or an emergency plan before, during, or following the event for which a state of emergency is declared which may include, but is not limited to, shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioners.

(g) Based upon advice of emergency management officials or public health officials, or upon the advice of licensed professionals retained by or otherwise available to the board, determine any portion of the condominium property or association property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety, or welfare of such persons.

(h) Require the evacuation of the condominium property in the event of a mandatory evacuation order in the locale in which the condominium is located.

(i) Based upon advice of emergency management officials or public health officials, or upon the advice of licensed professionals retained by or otherwise available to the board, determine whether the condominium property, association property, or any portion thereof can be safely inhabited, accessed, or occupied.

(j) Mitigate further damage, injury, or contagion, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus or contagion, including, but not limited to, mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property.

(k) Contract, on behalf of any unit owner or owners, for items or services for which the owners are otherwise individually responsible, but which are necessary to prevent further injury, contagion, or damage to the condominium property or association property.

(l) Regardless of any provision to the contrary and even if such authority does not specifically appear in the declaration of condominium, articles, or bylaws of the association, levy special assessments without a vote of the owners.

(m) Without unit owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association when operating funds are insufficient.

Taking a closer look at both of the above statutes, it can be seen that emergency powers may only be exercised to the extent allowed by state and federal law, unless specifically prohibited by the governing documents of the Association. Furthermore, the Board of an Association may only exercise the above emergency powers in response to or in anticipation of an emergency, as defined in s. 252.34(4), for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the Association is located. On the state level, a state of emergency may only be declared by executive order or proclamation of the Governor.

As such, it should be noted that the emergency powers an HOA or COA are limited, and the extent to which an HOA or COA can exercise these powers are always dependent on its governing documents, state law, and the nature of the emergency. Boards should also take into account that any emergency powers utilized by an HOA or COA Board must be exercised in a manner consistent with the board’s fiduciary duty to the community. An Association Board should be careful to balance its obligation to protect and look to the best interests of the community along with the limitations on its authority. A Board that over-extends its powers during an emergency may be viewed as domineering or even tyrannical, and is likely to lose the confidence and support of the community and its members.

However, the above language is not meant to scare Associations into never utilizing its emergency powers. After all, emergency powers were legally granted to HOAs and COAs for a reason – to protect the welfare of the community. HOAs and COAs should use their best discretion along with advice from expert legal counsel to determine what their emergency response should be. For instance, it may be wise for an Association to implement a disaster plan before, during or after an emergency, which could include turning off elevator or electrical systems at a designated time or organizing a volunteer team to help residents with reduced mobility to safely evacuate a disaster zone prior to an emergency. An Association could also conduct an emergency Board or member meeting to discuss a disaster response plan, for example.

In general, when preparing to respond to a disaster or emergency, advice and warnings issued by FEMA or other government agencies are a good place for an Association or Board to start.  For instance, if FEMA is advising residents to evacuate, a COA or HOA, although it may lack the power to order homeowners to leave their homes, could use its communication channels, such as their website or social media pages, to spread the word and ensure all members have notice of FEMA’s directives.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

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 to discuss your case. 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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COA Reserve Funds – What You Need to Know About Association Reserves

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Reserve funds are a key financial asset for your association, and provide a valuable source of funding for costly repairs, replacements and emergencies. Despite the importance of this resource, many Condominium Owners Associations are unsure as to what is needed to fund their reserve. Specifically, this blog will address two (2) concerns: (1) What is required to fund the reserve account; and (2) Requirements imposed by the newly passed Senate Bill 4D condominium inspection law as well as recent amendments to a significant portion of Florida Statutes Section 718, and how these will impact the operation of Condominium Owners Associations here in Florida. What Is Reserve Funding? What Is Required to Fund the Reserve Account? Reserve Funding is essentially a savings account for your association used to save money for costly repairs and replacements of community property. Think of it as the Association’s piggy bank or rainy-day jar. Reserve funds are typically spoken of as being held in one of two ways: pooled reserves and non-pooled reserves. Pooled reserves are funding for multiple assets (roofs, sidewalks, etc.) that are combined into one general account from which all expenses are paid. Non-pooled reserves are when each asset has its own account dedicated to its repairs and upkeep. Funds cannot be transferred under a non-pooled reserve method. Reserve accounts are often found to be underfunded significantly for the amount that could and should be done to keep the association’s community property in good working order. As of December 31, 2024, for items required to be included in a Structural Integrity Reserve Study (more on this briefly), an Association may no longer use those itemized reserve funds (or any interest accruing thereon) for other purposes, and an Association may only use those itemized reserve funds for their designated purposes. Essentially, the use of pooled reserve funds has been eliminated by the amendment of Florida Statutes Section 718. Recently, the Florida Senate rewrote and amended a significant portion of Florida Statutes Section 718, including the portion regarding reserve funding or a lack thereof. Florida Statutes Section 718.112(2)(f)(2a) reads: “The members of a unit-owner-controlled association may determine, by a majority vote at a duly called meeting of the association, to provide no reserves or less reserves than required by this subsection. Effective December 31, 2024, the members of a unit-owner-controlled association may not determine to provide no reserves or less reserves than required by this subsection for items listed in paragraph (g).” Paragraph g of the Florida Statutes Section 718.112(2) as noted by the above section states: An association must have a structural integrity reserve study completed at least every 10 years after the condominium’s creation for each building on the condominium property that at a minimum, inspects the roofs, load-bearing walls or other primary structural members, floors, foundations, fireproofing and fire protection systems, plumbing, electrical systems, waterproofing and exterior painting, and windows. So how may an Association Board go about changing their reserve funding? The board must present a proposed budget to the community assuming full reserve funding. For instance, let’s say an association seeks to reduce or waive their current reserve funding. The association cannot hold a vote to waive or reduce reserve funding until after a proposed budget with full reserve funding has been provided to the membership. If the board would like to put a vote on the table to reduce or waive reserves funding, then they should provide (along with the proposed budget which must be distributed 14 days prior to the budget meeting): (1) a second budget with waived or reduced reserves and (2) a limited proxy to be filled out by unit owners specifically requesting the membership to vote on the second budget. The proxy must include the following wording per Florida Statutes: “WAIVING OF RESERVES, IN WHOLE OR IN PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE ITEMS.” To successfully reduce or waive reserve funding, a majority of the membership (i.e., 51% of unit owners) must vote in favor of the reduction/ waiver. If by the time of the budget meeting arrives the association has received insufficient votes, the board may delay approving the budget to attempt to collect more votes. If a majority vote is not obtained, the board must approve the budget with full reserve funding. If a majority vote is obtained, the board must proceed with the waived or reduced reserve funding. It is important to note that any vote to waive or reduce reserves is only effective for one annual budget. Therefore, the vote must be obtained for every year the board would prefer not to fully fund reserves. Senate Bill 4D Senate Bill 4D was passed as a response to the tragedy in Surfside, Florida that occurred last year when a condominium building collapsed after a long history of maintenance problems and shoddy construction techniques. Senate Bill 4D was effective as of 05.26.2022 and entered fully into Chapter 2022-269 as of 06.29.2022, and the general bill reads as follows: “Building Safety; Providing that the entire roofing system or roof section of certain existing buildings or structures does not have to be repaired, replaced, or recovered in accordance with the Florida Building Code under certain circumstances; requiring condominium associations and cooperative associations to have milestone inspections performed on certain buildings at specified times; authorizing local enforcement agencies to prescribe timelines and penalties relating to milestone inspections; revising the types of records that constitute the official records of a condominium association; prohibiting certain members and associations from waiving or reducing reserves for certain items after a specified date, etc.” Specifically, a few sections should be noted to be of great importance with regard to the upkeep of the condominium buildings. Section 3 of Section 55.3899(2)(b) was added to define “substantial structural deterioration”. It defines substantial structural deterioration as distress that negatively affects a building’s general structural condition and integrity. But it does further note that the term does not include surface imperfections such as cracks, distortion, sagging, deflections, misalignment, signs of leakage, or peeling of finishes unless a licensed engineer or architect performing inspection determines that such surface imperfections are a sign of substantial structural deterioration. Further, concern has been expressed regarding the new “milestone inspection” requirement laid out by Senate Bill 4D. This Senate Bill does not require milestone inspections for condominium and cooperative buildings two stories or less. Per the latest revisions by the Florida Senate to Florida Statutes Section 718, condominium and cooperative buildings three stories and over must receive an inspection within a certain time frame that meets the new milestone inspection requirements for structural integrity. Those that are two or one story do not have to follow the set year inspection requirements, but one should be aware that lawmakers and legislators are looking closely at the condition of condominium buildings when it comes to resident safety. However, as to balconies specifically, if the balcony is supported by items that hold general structural integrity, they are considered under the list to watch for substantial structural deterioration. If left unfixed and without inspection and a balcony structure fails or an individual is injured while the Board of Directions and Community Association Manager is aware of potential substantial structural deterioration regarding the balconies, then such a failure is a breach of an officers and directors’ fiduciary relationship to the unit owners under Florida Statutes Section. 718.111(1). The attorneys at The Orlando Law Group represent condominium owners as well as COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida. If you are a condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike. 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 to discuss your case. 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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A Guide to Community Association Records Requests for HOAs and COAs: What Can and Can’t an Owner Request?

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Homeowners or condominium owners, as members of a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA; do have the right to request and review the “official records” of the Association. But what can and can’t owners request? What are the “official records of the Association?”

First, let’s look at what “official records” means. Pursuant to Florida Statute 720.303(4), (the statute governing HOAs):

“OFFICIAL RECORDS.—The association shall maintain each of the following items, when applicable, which constitute the official records of the association:

(a) Copies of any plans, specifications, permits, and warranties related to improvements constructed on the common areas or other property that the association is obligated to maintain, repair, or replace.

(b) A copy of the bylaws of the association and of each amendment to the bylaws.

(c) A copy of the articles of incorporation of the association and of each amendment thereto.

(d) A copy of the declaration of covenants and a copy of each amendment thereto.

(e) A copy of the current rules of the homeowners’ association.

(f) The minutes of all meetings of the board of directors and of the members, which minutes must be retained for at least 7 years.

(g) A current roster of all members and their mailing addresses and parcel identifications. The association shall also maintain the electronic mailing addresses and the numbers designated by members for receiving notice sent by electronic transmission of those members consenting to receive notice by electronic transmission. The electronic mailing addresses and numbers provided by unit owners to receive notice by electronic transmission shall be removed from association records when consent to receive notice by electronic transmission is revoked. However, the association is not liable for an erroneous disclosure of the electronic mail address or the number for receiving electronic transmission of notices.

(h) All of the association’s insurance policies or a copy thereof, which policies must be retained for at least 7 years.

(i) A current copy of all contracts to which the association is a party, including, without limitation, any management agreement, lease, or other contract under which the association has any obligation or responsibility. Bids received by the association for work to be performed must also be considered official records and must be kept for a period of 1 year.

(j) The financial and accounting records of the association, kept according to good accounting practices. All financial and accounting records must be maintained for a period of at least 7 years. The financial and accounting records must include:

1. Accurate, itemized, and detailed records of all receipts and expenditures.

2. A current account and a periodic statement of the account for each member, designating the name and current address of each member who is obligated to pay assessments, the due date and amount of each assessment or other charge against the member, the date and amount of each payment on the account, and the balance due.

3. All tax returns, financial statements, and financial reports of the association.

4. Any other records that identify, measure, record, or communicate financial information.

(k) A copy of the disclosure summary described in s. 720.401(1).

(l) Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by parcel owners, which must be maintained for at least 1 year after the date of the election, vote, or meeting.

(m) All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.

(n) All other written records of the association not specifically included in this subsection which are related to the operation of the association.”

The above would constitute all of the “official records” of an HOA. Regarding the “official records” of a COA, pursuant to Florida Statute 718.111(12):

“OFFICIAL RECORDS.—

(a) From the inception of the association, the association shall maintain each of the following items, if applicable, which constitutes the official records of the association:

1. A copy of the plans, permits, warranties, and other items provided by the developer under s. 718.301(4).

2. A photocopy of the recorded declaration of condominium of each condominium operated by the association and each amendment to each declaration.

3. A photocopy of the recorded bylaws of the association and each amendment to the bylaws.

4. A certified copy of the articles of incorporation of the association, or other documents creating the association, and each amendment thereto.

5. A copy of the current rules of the association.

6. A book or books that contain the minutes of all meetings of the association, the board of administration, and the unit owners.

7. A current roster of all unit owners and their mailing addresses, unit identifications, voting certifications, and, if known, telephone numbers. The association shall also maintain the e-mail addresses and facsimile numbers of unit owners consenting to receive notice by electronic transmission. The e-mail addresses and facsimile numbers are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with sub-subparagraph (c)3.e. However, the association is not liable for an inadvertent disclosure of the e-mail address or facsimile number for receiving electronic transmission of notices.

8. All current insurance policies of the association and condominiums operated by the association.

9. A current copy of any management agreement, lease, or other contract to which the association is a party or under which the association or the unit owners have an obligation or responsibility.

10. Bills of sale or transfer for all property owned by the association.

11. Accounting records for the association and separate accounting records for each condominium that the association operates. Any person who knowingly or intentionally defaces or destroys such records, or who knowingly or intentionally fails to create or maintain such records, with the intent of causing harm to the association or one or more of its members, is personally subject to a civil penalty pursuant to s. 718.501(1)(d). The accounting records must include, but are not limited to:

a. Accurate, itemized, and detailed records of all receipts and expenditures.

b. A current account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid on the account, and the balance due.

c. All audits, reviews, accounting statements, structural integrity reserve studies, and financial reports of the association or condominium. Structural integrity reserve studies must be maintained for at least 15 years after the study is completed.

d. All contracts for work to be performed. Bids for work to be performed are also considered official records and must be maintained by the association for at least 1 year after receipt of the bid.

12. Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by unit owners, which must be maintained for 1 year from the date of the election, vote, or meeting to which the document relates, notwithstanding paragraph (b).

13. All rental records if the association is acting as agent for the rental of condominium units.

14. A copy of the current question and answer sheet as described in s. 718.504.

15. A copy of the inspection reports described in ss. 553.899 and 718.301(4)(p) and any other inspection report relating to a structural or life safety inspection of condominium property. Such record must be maintained by the association for 15 years after receipt of the report.

16. Bids for materials, equipment, or services.

17. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).

18. All other written records of the association not specifically included in the foregoing which are related to the operation of the association.

The above would thus all constitute the “official records” of a COA. Both statutes require that the Association, whether an HOA or a COA, maintains the official records of the Association from the Association’s inception. Certain records may only be required to be maintained for a certain period of time-for example, while most official records must be maintained for at least 7 years, Chapter 718 (COA Statute) requires that bids for work to be performed or for materials, equipment, or services must be maintained for at least 1 year after receipt of the bid.

The official records of the Association may, based on Florida statute, be requested by a parcel owner for inspection or photocopying. Requests for records must be sent in written form by certified mail, return receipt requested. This request must be fulfilled within 10 business days after receipt by the Board or its designee of a written request. Associations can also comply with this requirement by having a copy of the official records of the association available for inspection or copying on the condominium property or association property, such as at the community clubhouse, or the association may offer the option of making the records available to a unit owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request.

The official records of the Association may be requested and inspected any association member or the authorized representative of such member at all reasonable times. This right includes the right to make or obtain copies, at the reasonable expense, if any, of the member. For COAs, a renter or tenant of a unit has the right to inspect and copy only the declaration of condominium, the association’s bylaws and rules, and the inspection reports described in ss. 553.899 and 718.301(4)(p).

However, while unit owners do have this right; this does not mean that the Association cannot set reasonable rules governing the inspection of Association records. Pursuant to Florida Statutes Chapters 718 and 720, an Association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but cannot require a unit owner to state a reason for the inspection. For example, an Association could limit unit owners to only making one records request per month.

Note that ONLY the official records of the Association can be requested and inspected by a unit owner. If a unit owner’s request falls outside the bounds of an official record, or if the unit owner’s request is too vague or unreasonable, the Association is not required to provide those records. As such, while owners do have a right to request official records; the Association is not required to provide unofficial records.

What else cannot be requested and inspected? Florida Statute 718.111(12)(c)(3) provides us with an answer for COAs:

“The following records are not accessible to unit owners:

a. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

b. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit.

c. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

d. Medical records of unit owners.

e. Social security numbers, driver license numbers, credit card numbers, e-mail addresses, telephone numbers, facsimile numbers, emergency contact information, addresses of a unit owner other than as provided to fulfill the association’s notice requirements, and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, property address, and any address, e-mail address, or facsimile number provided to the association to fulfill the association’s notice requirements.

f. Electronic security measures that are used by the association to safeguard data, including passwords.

g. The software and operating system used by the association which allow the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

h. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).”

For HOAs, similar restrictions are applicable pursuant to Florida Statute 720.303(5)(c):

“The following records are not accessible to members or parcel owners:

1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.

3. Information an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents.

4. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

5. Medical records of parcel owners or community residents.

6. Social security numbers, driver license numbers, credit card numbers, electronic mailing addresses, telephone numbers, facsimile numbers, emergency contact information, any addresses for a parcel owner other than as provided for association notice requirements, and other personal identifying information of any person, excluding the person’s name, parcel designation, mailing address, and property address.

7. Any electronic security measure that is used by the association to safeguard data, including passwords.

8. The software and operating system used by the association which allows the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

9. All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.”

All of the above is not considered as part of the official records of the Association and thus cannot be requested. An Association is not required to provide any of the above information to owners.

What happens if the Association fails to comply with a records request? It depends. In the case of an HOA, a member who is denied access to official records is entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 720.303. The minimum damages are $50 per calendar day up to 10 days, with the calculation beginning on the 11th business day after receipt of the written request. In the case of a COA, a unit owner who is denied access to official records is also entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 718.111. Minimum damages are $50 per calendar day for up to 10 days, with the calculation beginning on the 11th working day after receipt of the written request. A unit owner who prevails in an enforcement action may also be entitled to reasonable attorney’s fees from the Association or person in control of the records.

If you are a board member who is unsure as to what records you need to provide and what records you cannot provide to a unit owner, it may be helpful for you to seek the help of an Association law attorney as well. An experienced Association law attorney can be of great assistance to both homeowners or condominium owners and Association or board members alike.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

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 to discuss your case. 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.

As a homeowner or condominium owner and as a member of a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA; you do have the right to request and review the “official records” of the Association. But what can and can’t owners request? What are the “official records of the Association?”

First, let’s look at what “official records” means. Pursuant to Florida Statute 720.303(4), (the statute governing HOAs):

“OFFICIAL RECORDS. The association shall maintain each of the following items, when applicable, which constitute the official records of the association:

(a) Copies of any plans, specifications, permits, and warranties related to improvements constructed on the common areas or other property that the association is obligated to maintain, repair, or replace.

(b) A copy of the bylaws of the association and of each amendment to the bylaws.

(c) A copy of the articles of incorporation of the association and of each amendment thereto.

(d) A copy of the declaration of covenants and a copy of each amendment thereto.

(e) A copy of the current rules of the homeowners’ association.

(f) The minutes of all meetings of the board of directors and of the members, which minutes must be retained for at least 7 years.

(g) A current roster of all members and their mailing addresses and parcel identifications. The association shall also maintain the electronic mailing addresses and the numbers designated by members for receiving notice sent by electronic transmission of those members consenting to receive notice by electronic transmission. The electronic mailing addresses and numbers provided by unit owners to receive notice by electronic transmission shall be removed from association records when consent to receive notice by electronic transmission is revoked. However, the association is not liable for an erroneous disclosure of the electronic mail address or the number for receiving electronic transmission of notices.

(h) All of the association’s insurance policies or a copy thereof, which policies must be retained for at least 7 years.

(i) A current copy of all contracts to which the association is a party, including, without limitation, any management agreement, lease, or other contract under which the association has any obligation or responsibility. Bids received by the association for work to be performed must also be considered official records and must be kept for a period of 1 year.

(j) The financial and accounting records of the association, kept according to good accounting practices. All financial and accounting records must be maintained for a period of at least 7 years. The financial and accounting records must include:

1. Accurate, itemized, and detailed records of all receipts and expenditures.

2. A current account and a periodic statement of the account for each member, designating the name and current address of each member who is obligated to pay assessments, the due date and amount of each assessment or other charge against the member, the date and amount of each payment on the account, and the balance due.

3. All tax returns, financial statements, and financial reports of the association.

4. Any other records that identify, measure, record, or communicate financial information.

(k) A copy of the disclosure summary described in s. 720.401(1).

(l) Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by parcel owners, which must be maintained for at least 1 year after the date of the election, vote, or meeting.

(m) All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.

(n) All other written records of the association not specifically included in this subsection which are related to the operation of the association.”

The above would constitute all of the “official records” of an HOA. Regarding the “official records” of a COA, pursuant to Florida Statute 718.111(12):

“OFFICIAL RECORDS.

(a) From the inception of the association, the association shall maintain each of the following items, if applicable, which constitutes the official records of the association:

1. A copy of the plans, permits, warranties, and other items provided by the developer under s. 718.301(4).

2. A photocopy of the recorded declaration of condominium of each condominium operated by the association and each amendment to each declaration.

3. A photocopy of the recorded bylaws of the association and each amendment to the bylaws.

4. A certified copy of the articles of incorporation of the association, or other documents creating the association, and each amendment thereto.

5. A copy of the current rules of the association.

6. A book or books that contain the minutes of all meetings of the association, the board of administration, and the unit owners.

7. A current roster of all unit owners and their mailing addresses, unit identifications, voting certifications, and, if known, telephone numbers. The association shall also maintain the e-mail addresses and facsimile numbers of unit owners consenting to receive notice by electronic transmission. The e-mail addresses and facsimile numbers are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with sub-subparagraph (c)3.e. However, the association is not liable for an inadvertent disclosure of the e-mail address or facsimile number for receiving electronic transmission of notices.

8. All current insurance policies of the association and condominiums operated by the association.

9. A current copy of any management agreement, lease, or other contract to which the association is a party or under which the association or the unit owners have an obligation or responsibility.

10. Bills of sale or transfer for all property owned by the association.

11. Accounting records for the association and separate accounting records for each condominium that the association operates. Any person who knowingly or intentionally defaces or destroys such records, or who knowingly or intentionally fails to create or maintain such records, with the intent of causing harm to the association or one or more of its members, is personally subject to a civil penalty pursuant to s. 718.501(1)(d). The accounting records must include, but are not limited to:

a. Accurate, itemized, and detailed records of all receipts and expenditures.

b. A current account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid on the account, and the balance due.

c. All audits, reviews, accounting statements, structural integrity reserve studies, and financial reports of the association or condominium. Structural integrity reserve studies must be maintained for at least 15 years after the study is completed.

d. All contracts for work to be performed. Bids for work to be performed are also considered official records and must be maintained by the association for at least 1 year after receipt of the bid.

12. Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by unit owners, which must be maintained for 1 year from the date of the election, vote, or meeting to which the document relates, notwithstanding paragraph (b).

13. All rental records if the association is acting as agent for the rental of condominium units.

14. A copy of the current question and answer sheet as described in s. 718.504.

15. A copy of the inspection reports described in ss. 553.899 and 718.301(4)(p) and any other inspection report relating to a structural or life safety inspection of condominium property. Such record must be maintained by the association for 15 years after receipt of the report.

16. Bids for materials, equipment, or services.

17. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).

18. All other written records of the association not specifically included in the foregoing which are related to the operation of the association.

The above would thus all constitute the “official records” of a COA. Both statutes require that the Association, whether an HOA or a COA, maintains the official records of the Association from the Association’s inception. Certain records may only be required to be maintained for a certain period of time-for example, while most official records must be maintained for at least 7 years, Chapter 718 (COA Statute) requires that bids for work to be performed or for materials, equipment, or services must be maintained for at least 1 year after receipt of the bid.

The official records of the Association may, based on Florida statute, be requested by a parcel owner for inspection or photocopying. Requests for records must be sent in written form by certified mail, return receipt requested. This request must be fulfilled within 10 business days after receipt by the Board or its designee of a written request. Associations can also comply with this requirement by having a copy of the official records of the association available for inspection or copying on the condominium property or association property, such as at the community clubhouse, or the association may offer the option of making the records available to a unit owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request.

The official records of the Association may be requested and inspected any association member or the authorized representative of such member at all reasonable times. This right includes the right to make or obtain copies, at the reasonable expense, if any, of the member. For COAs, a renter or tenant of a unit has the right to inspect and copy only the declaration of condominium, the association’s bylaws and rules, and the inspection reports described in ss. 553.899 and 718.301(4)(p). However, while unit owners do have this right; this does not mean that the Association cannot set reasonable rules governing the inspection of Association records. Pursuant to Florida Statutes Chapters 718 and 720, an Association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but cannot require a unit owner to state a reason for the inspection. For example, an Association could limit unit owners to only making one records request per month.

Note that ONLY the official records of the Association can be requested and inspected by a unit owner. If a unit owner’s request falls outside the bounds of an official record, or if the unit owner’s request is too vague or unreasonable, the Association is not required to provide those records. As such, while owners do have a right to request official records; the Association is not required to provide unofficial records. What else cannot be requested and inspected? Florida Statute 718.111(12)(c)(3) provides us with an answer for COAs:

“The following records are not accessible to unit owners:

a. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

b. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit.

c. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

d. Medical records of unit owners.

e. Social security numbers, driver license numbers, credit card numbers, e-mail addresses, telephone numbers, facsimile numbers, emergency contact information, addresses of a unit owner other than as provided to fulfill the association’s notice requirements, and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, property address, and any address, e-mail address, or facsimile number provided to the association to fulfill the association’s notice requirements.

f. Electronic security measures that are used by the association to safeguard data, including passwords.

g. The software and operating system used by the association which allow the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

h. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).”

For HOAs, similar restrictions are applicable pursuant to Florida Statute 720.303(5)(c):

“The following records are not accessible to members or parcel owners:

1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.

3. Information an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents.

4. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

5. Medical records of parcel owners or community residents.

6. Social security numbers, driver license numbers, credit card numbers, electronic mailing addresses, telephone numbers, facsimile numbers, emergency contact information, any addresses for a parcel owner other than as provided for association notice requirements, and other personal identifying information of any person, excluding the person’s name, parcel designation, mailing address, and property address.

7. Any electronic security measure that is used by the association to safeguard data, including passwords.

8. The software and operating system used by the association which allows the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

9. All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.”

All of the above is not considered as part of the official records of the Association and thus cannot be requested. An Association is not required to provide any of the above information to owners.

What happens if the Association fails to comply with a records request? It depends. In the case of an HOA, a member who is denied access to official records is entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 720.303. The minimum damages are $50 per calendar day up to 10 days, with the calculation beginning on the 11th business day after receipt of the written request. In the case of a COA, a unit owner who is denied access to official records is also entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 718.111. Minimum damages are $50 per calendar day for up to 10 days, with the calculation beginning on the 11th working day after receipt of the written request. A unit owner who prevails in an enforcement action may also be entitled to reasonable attorneys fees from the Association or person in control of the records.

If you, as a member of an HOA or COA, have submitted a records request to your Association, who has failed to comply with that records request, it may be helpful for you to seek the help of an Association law attorney. An experienced Association law attorney can be of great assistance to both homeowners or condominium owners and Association or board members alike.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

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 to discuss your case. 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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Requesting Records from your Condominium Association or Homeowners Association: What Can and Can’t You Request?

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As a homeowner or condominium owner and as a member of a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA; you do have the right to request and review the “official records” of the Association. But what can and can’t owners request? What are the “official records of the Association?”

First, let’s look at what “official records” means. Pursuant to Florida Statute 720.303(4), (the statute governing HOAs):

“OFFICIAL RECORDS. The association shall maintain each of the following items, when applicable, which constitute the official records of the association:

(a) Copies of any plans, specifications, permits, and warranties related to improvements constructed on the common areas or other property that the association is obligated to maintain, repair, or replace.

(b) A copy of the bylaws of the association and of each amendment to the bylaws.

(c) A copy of the articles of incorporation of the association and of each amendment thereto.

(d) A copy of the declaration of covenants and a copy of each amendment thereto.

(e) A copy of the current rules of the homeowners’ association.

(f) The minutes of all meetings of the board of directors and of the members, which minutes must be retained for at least 7 years.

(g) A current roster of all members and their mailing addresses and parcel identifications. The association shall also maintain the electronic mailing addresses and the numbers designated by members for receiving notice sent by electronic transmission of those members consenting to receive notice by electronic transmission. The electronic mailing addresses and numbers provided by unit owners to receive notice by electronic transmission shall be removed from association records when consent to receive notice by electronic transmission is revoked. However, the association is not liable for an erroneous disclosure of the electronic mail address or the number for receiving electronic transmission of notices.

(h) All of the association’s insurance policies or a copy thereof, which policies must be retained for at least 7 years.

(i) A current copy of all contracts to which the association is a party, including, without limitation, any management agreement, lease, or other contract under which the association has any obligation or responsibility. Bids received by the association for work to be performed must also be considered official records and must be kept for a period of 1 year.

(j) The financial and accounting records of the association, kept according to good accounting practices. All financial and accounting records must be maintained for a period of at least 7 years. The financial and accounting records must include:

1. Accurate, itemized, and detailed records of all receipts and expenditures.

2. A current account and a periodic statement of the account for each member, designating the name and current address of each member who is obligated to pay assessments, the due date and amount of each assessment or other charge against the member, the date and amount of each payment on the account, and the balance due.

3. All tax returns, financial statements, and financial reports of the association.

4. Any other records that identify, measure, record, or communicate financial information.

(k) A copy of the disclosure summary described in s. 720.401(1).

(l) Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by parcel owners, which must be maintained for at least 1 year after the date of the election, vote, or meeting.

(m) All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.

(n) All other written records of the association not specifically included in this subsection which are related to the operation of the association.”

The above would constitute all of the “official records” of an HOA. Regarding the “official records” of a COA, pursuant to Florida Statute 718.111(12):

“OFFICIAL RECORDS.

(a) From the inception of the association, the association shall maintain each of the following items, if applicable, which constitutes the official records of the association:

1. A copy of the plans, permits, warranties, and other items provided by the developer under s. 718.301(4).

2. A photocopy of the recorded declaration of condominium of each condominium operated by the association and each amendment to each declaration.

3. A photocopy of the recorded bylaws of the association and each amendment to the bylaws.

4. A certified copy of the articles of incorporation of the association, or other documents creating the association, and each amendment thereto.

5. A copy of the current rules of the association.

6. A book or books that contain the minutes of all meetings of the association, the board of administration, and the unit owners.

7. A current roster of all unit owners and their mailing addresses, unit identifications, voting certifications, and, if known, telephone numbers. The association shall also maintain the e-mail addresses and facsimile numbers of unit owners consenting to receive notice by electronic transmission. The e-mail addresses and facsimile numbers are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with sub-subparagraph (c)3.e. However, the association is not liable for an inadvertent disclosure of the e-mail address or facsimile number for receiving electronic transmission of notices.

8. All current insurance policies of the association and condominiums operated by the association.

9. A current copy of any management agreement, lease, or other contract to which the association is a party or under which the association or the unit owners have an obligation or responsibility.

10. Bills of sale or transfer for all property owned by the association.

11. Accounting records for the association and separate accounting records for each condominium that the association operates. Any person who knowingly or intentionally defaces or destroys such records, or who knowingly or intentionally fails to create or maintain such records, with the intent of causing harm to the association or one or more of its members, is personally subject to a civil penalty pursuant to s. 718.501(1)(d). The accounting records must include, but are not limited to:

a. Accurate, itemized, and detailed records of all receipts and expenditures.

b. A current account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid on the account, and the balance due.

c. All audits, reviews, accounting statements, structural integrity reserve studies, and financial reports of the association or condominium. Structural integrity reserve studies must be maintained for at least 15 years after the study is completed.

d. All contracts for work to be performed. Bids for work to be performed are also considered official records and must be maintained by the association for at least 1 year after receipt of the bid.

12. Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by unit owners, which must be maintained for 1 year from the date of the election, vote, or meeting to which the document relates, notwithstanding paragraph (b).

13. All rental records if the association is acting as agent for the rental of condominium units.

14. A copy of the current question and answer sheet as described in s. 718.504.

15. A copy of the inspection reports described in ss. 553.899 and 718.301(4)(p) and any other inspection report relating to a structural or life safety inspection of condominium property. Such record must be maintained by the association for 15 years after receipt of the report.

16. Bids for materials, equipment, or services.

17. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).

18. All other written records of the association not specifically included in the foregoing which are related to the operation of the association.

The above would thus all constitute the “official records” of a COA. Both statutes require that the Association, whether an HOA or a COA, maintains the official records of the Association from the Association’s inception. Certain records may only be required to be maintained for a certain period of time-for example, while most official records must be maintained for at least 7 years, Chapter 718 (COA Statute) requires that bids for work to be performed or for materials, equipment, or services must be maintained for at least 1 year after receipt of the bid.

The official records of the Association may, based on Florida statute, be requested by a parcel owner for inspection or photocopying. Requests for records must be sent in written form by certified mail, return receipt requested. This request must be fulfilled within 10 business days after receipt by the Board or its designee of a written request. Associations can also comply with this requirement by having a copy of the official records of the association available for inspection or copying on the condominium property or association property, such as at the community clubhouse, or the association may offer the option of making the records available to a unit owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request.

The official records of the Association may be requested and inspected any association member or the authorized representative of such member at all reasonable times. This right includes the right to make or obtain copies, at the reasonable expense, if any, of the member. For COAs, a renter or tenant of a unit has the right to inspect and copy only the declaration of condominium, the association’s bylaws and rules, and the inspection reports described in ss. 553.899 and 718.301(4)(p). However, while unit owners do have this right; this does not mean that the Association cannot set reasonable rules governing the inspection of Association records. Pursuant to Florida Statutes Chapters 718 and 720, an Association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but cannot require a unit owner to state a reason for the inspection. For example, an Association could limit unit owners to only making one records request per month.

Note that ONLY the official records of the Association can be requested and inspected by a unit owner. If a unit owner’s request falls outside the bounds of an official record, or if the unit owner’s request is too vague or unreasonable, the Association is not required to provide those records. As such, while owners do have a right to request official records; the Association is not required to provide unofficial records. What else cannot be requested and inspected? Florida Statute 718.111(12)(c)(3) provides us with an answer for COAs:

“The following records are not accessible to unit owners:

a. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

b. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit.

c. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

d. Medical records of unit owners.

e. Social security numbers, driver license numbers, credit card numbers, e-mail addresses, telephone numbers, facsimile numbers, emergency contact information, addresses of a unit owner other than as provided to fulfill the association’s notice requirements, and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, property address, and any address, e-mail address, or facsimile number provided to the association to fulfill the association’s notice requirements.

f. Electronic security measures that are used by the association to safeguard data, including passwords.

g. The software and operating system used by the association which allow the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

h. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).”

For HOAs, similar restrictions are applicable pursuant to Florida Statute 720.303(5)(c):

“The following records are not accessible to members or parcel owners:

1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.

3. Information an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents.

4. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

5. Medical records of parcel owners or community residents.

6. Social security numbers, driver license numbers, credit card numbers, electronic mailing addresses, telephone numbers, facsimile numbers, emergency contact information, any addresses for a parcel owner other than as provided for association notice requirements, and other personal identifying information of any person, excluding the person’s name, parcel designation, mailing address, and property address.

7. Any electronic security measure that is used by the association to safeguard data, including passwords.

8. The software and operating system used by the association which allows the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

9. All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.”

All of the above is not considered as part of the official records of the Association and thus cannot be requested. An Association is not required to provide any of the above information to owners.

What happens if the Association fails to comply with a records request? It depends. In the case of an HOA, a member who is denied access to official records is entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 720.303. The minimum damages are $50 per calendar day up to 10 days, with the calculation beginning on the 11th business day after receipt of the written request. In the case of a COA, a unit owner who is denied access to official records is also entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 718.111. Minimum damages are $50 per calendar day for up to 10 days, with the calculation beginning on the 11th working day after receipt of the written request. A unit owner who prevails in an enforcement action may also be entitled to reasonable attorneys fees from the Association or person in control of the records.

If you, as a member of an HOA or COA, have submitted a records request to your Association, who has failed to comply with that records request, it may be helpful for you to seek the help of an Association law attorney. An experienced Association law attorney can be of great assistance to both homeowners or condominium owners and Association or board members alike.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

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 to discuss your case. 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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