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gopher tortoise

The Florida Gopher Tortoise – A Slow Set-Back to Development

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Jarrod Ethridge on the PACE Program in FloridaBy Jarrod Etheridge

When purchasing a piece of property, it is important to consider a variety of factors, including the animals, like the gopher tortoise, that inhabit the landscape. If any endangered or threatened species reside on that property, be prepared for a long and potentially expensive process. This includes the gopher tortoise, who are commonly known for digging burrows in their home range in Florida, Georgia, and other southern states.

What is a gopher tortoise?

The gopher tortoise is a large terrestrial reptile that has front legs perfectly suited for burrowing. The rear feet of the gopher tortoise are often referred to as “elephantine” because of their size and shape.

The front legs are protected from sharp rocks while burrowing by a layer of scales. the scales are usually dark brown, gray, or black in color. They also have a yellow lower shell. You can easily distinguish a male or female gopher tortoise. Male gopher tortoises having concave lower shells, while females’ lower shells are more are flat in appearance.

Gopher tortoise habitats

Gopher tortoises occupy various habitats throughout Florida. They use their front legs to dig burrows many feet deep for shelter and forage on low-growing plants. You may have seen them in a patch of woods or walking down the road. 

Gopher tortoises share their burrows with more than 350 other species. They are referred to as a keystone species because of the Florida natural ecosystem’s reliance on the burrows.

A threatened wildlife species

In Florida, the gopher tortoise is listed as a Threatened Wildlife Species by the states fish and wildlife conservation commission. Both the tortoise and its burrow are protected by state law. Gopher tortoises must be relocated before any land clearing or development takes place within twenty-five feet of either a gopher tortoise or a gopher tortoise burrow. Property owners must obtain permits from the Florida Fish and Wildlife Commission (FWC) before capturing and relocating tortoises. 

Developers, builders or landowners who develop within the protected area of a gopher tortoise or its burrow commit a crime under Florida law. It is a level four violation, as defined in §379.401(4)(b) is a felony of the third degree which if convicted could result in (1) a term of imprisonment not exceeding five years, (Florida Statute § 775.082) and/or (2) a fine of $5,000 (Florida Statute § 775.083). 

If you buy a piece of property that has an existing gopher tortoise habitat or gopher tortoise burrows, you might have some work to do. The prohibitions related to gopher tortoise burrows will not be applied if you can demonstrate that those burrows are no longer used by gopher tortoises. To prove this, at your expense, a gopher tortoise survey will have to be conducted in accordance with the guidelines of the FWC.

Most activities associated with residential lawn and landscape maintenance do not require a permit provided the activities must not collapse gopher tortoise burrows, cause habitat loss, or harm gopher tortoises. Prescribed burning requirements vary from county to county and should be explored before burning near a gopher tortoise habitat.

Even if the collapse of the burrow’s sandy soils is accidental, the landowner could be held criminally or civilly liable for disrupting the tortoises. This is more likely if the person knew that their actions could harm the tortoises.  It’s advisable to check with the fish and wildlife service professionals if you have any concerns.

Getting help developing land with gopher tortoises in Florida

P.A.W.S. (Peoples Alliance for Wildlife Survival) is a non-profit organization that helps landowners with the development of land containing Gopher Tortoise burrows. The organization’s primary concern is for the welfare of the animal during the stressful relocation process. According to its website, the organization can provide four options to help homeowners:

Option 1: Develop the property while staying at least twenty-five feet away from the Gopher Tortoises. This is advertised as the least expensive and most favorable open for both the landowner and the tortoise. The organization will help study mark the areas to avoid developing, and they suggest placing signs up that notify the public of the existence of the tortoises.  

The cost for this service is around $100.00 through this non-profit organization. Using a private company could potentially cost hundreds or thousands of dollars. Many Florida builders have employees certified in detecting and protecting the Gopher Tortoise as they could be held criminally liable for disturbing them as well.

Option 2: Onsite Relocation. In some cases, you potentially have the option to relocate the tortoise to a different part of the subject property.  “This process generally involves trapping or excavating the burrow, and once empty, completely collapsing it.

The tortoises are moved to the predetermined location elsewhere on the property. They are enclosed in a temporary pen and supported while starter burrows are created and they are eventually released.” P.A.W.S., https://www.pawsfloridachapter.com/Tortoiserelocationinfo.html. The cost for this service is $250-350.00 through this non-profit.

Option 3: Offsite Relocation. Offsite relocation is considered to be a more time consuming and costly alternative to the previously listed options. This route requires the highest levels of permits and oversight by government agencies such as the FWC. P.A.W.S. typically charges between $400.00 and $600.00 to oversee this service, which is compared to Private companies which can run up to $6,500.00 for comparable services. 

Avoiding problems with gopher tortoise

A gopher tortoise problem can be easily avoided, but it can be a very costly and time-consuming problem if it is missed during the inspection period. Should you or your client have any issues relating to gopher tortoises, it is highly recommended that you address the problem as soon as possible.

Any attempt to relocate or otherwise remove the tortoises on your own could result in very significant fines and/or criminal penalties against you.  Other types of wildlife have similar protections in Florida through an endangered species act and have their own experts to help landowners with mitigation.  

Protected species include Bald Eagles, which are the most well-known. It’s also worth knowing about gopher frogs and burrowing owls. If you are in doubt if a species is protected, it is advised to ask a professional before you begin your project. 

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PACE Program Florida Solar

The PACE Program – Are Solar Panels Worth The Trouble in Florida?

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Jarrod Ethridge on the PACE Program in FloridaBy Jarrod Etheridge

What is the PACE Program? 

When a homeowner is looking to upgrade their home to solar energy, the first step is to determine exactly how the project will be paid for Since most people typically do not have thousands of dollars in their rainy day fund, many people will require a loan to finance the upgrades. The PACE program will provide the loan for the homeowner. 

PACE, which stands for property assessed clean energy, is a new concept in financing home and commercial property improvements. PACE financing is an easy and effective way to finance a range of upgrades that save energy, conserve water, harness renewable energy, and protect against natural disasters such as hurricanes and earthquakes. While PACE programs are enabled by state legislation and approved by local governments, PACE financing is not a government discount or incentive program. 

PACE financing is a loan that is available in areas where the local government has allocated funds to be used for financing improvements on residential and commercial properties. An authorized PACE lender provides the funds to the homeowner, and the property owner repays the financial institution through an assessment attached to their annual property tax bill. The specific amount of money you qualify for is dependent on the amount of equity in your house. Hundreds of home and commercial improvements qualify for PACE financing. Among the more common are solar photovoltaic (PV) systems, roofing, HVAC systems, impact-resistant windows and doors, drought-tolerant landscaping and many more. 

The PACE program provides many benefits such as no money down with 100% financing and no payments for up to twelve months. A PACE loan is different than traditional loans because it attaches to the property, not the person. This means that the person who takes the loan can sell their house, and the loan is then paid by the new owner of the house. 

A loan with zero upfront costs attaches to the property rather than the person, and provides upgrades such as Solar panels, almost sounds too good to be true. Are there any downsides to a PACE program loan? For many homeowners, there have been. 

Are there problems with the PACE program? 

Ygrene Energy Fund is one of the bigger PACE program lenders in Florida. A typical PACE loan financed through Ygrene Energy Fund Florida lasts about 20 years with an average interest rate of about 7 percent. The PACE program has a higher interest rate than other green mortgage alternatives such as FHA loans. Borrowers can expect to repay twice the project cost over the payback period. As with any other type of loan, failure to make payments to a PACE loan will end up in a lien, which eventually could result in foreclosure. A property assessment automatically becomes the first lien on any property, putting both the borrowers and the mortgage lenders at risk of losing their money. With the risk incurred by the mortgage company, many lenders will not finance a purchase of a property holding a PACE loan. 

Many issues have arisen with contractors recommending a PACE loan to homeowners. It has been reported that some contractors charge more money for services that are financed through a PACE loan. There have also been reports of contractors stating that the price of payments on the loan would be offset by the amount of money the homeowner saves in utility bills, which for many homeowners was not accurate. In many instances, the homeowner relies on what the contractor has told them, regardless of whether this information is factually accurate. 

Should I use the PACE program?

Many homeowners did not take the time to read the full contract for a PACE loan, nor did they do the appropriate research to determine if this program was the right program for their specific situations. Some homeowners have alleged that they did not even know that failure to repay the loan would result in a lien on their property. If the house is foreclosed upon, the homeowner will have to pay the PACE loan off in full. If there is any money left over, the lender of the mortgage (if there is one) will be entitled to the surplus. This would leave the homeowner with a very unlikely chance of receiving any money from the foreclosure sale of their home. 

Is it worth getting a PACE loan for solar in Florida?

Yes, and No. The PACE program is not a one-size-fits-all program and should be scrutinized by each homeowner BEFORE they sign the contract. If you understand the PACE program, there are certainly ways to use it to your advantage. The real issues with the program seem to stem from homeowners jumping into a program without fully understanding the long-term contract. After the Solar panels are installed, the reality sets in that the PACE loan is a 20-30-year commitment that can potentially cost twice as much to repay, if the homeowner can make the payments at all. If you are the type of person who reads the terms of service on products you purchase, you should not have any problems with the PACE program, however, the PACE program is not a commitment in which you want to agree to the terms of service without first reading them.

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Lady Bird Deed

What you need to know about the Lady Bird Deed benefits

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What is a Lady Bird Deed and why is it beneficial?

Florida is one of only a handful of states that recognize a Lady Bird Deed. A person who creates a Lady Bird Deed, also known as an Enhanced Life Estate Deed, transfers property to himself for his lifetime, creating a life estate in the original owner, and names one or more people, entities, trusts, or organizations to inherit the property.

The life estate retained by the original owner of the property is enhanced, meaning that the owner retains actual ownership of the property until death, and can change the deed, mortgage, or sell the property as desired during their lifetime without permission or involvement of the remainder beneficiaries. When the owner of the property dies, the property is automatically transferred to the new owner(s) listed on the ladybird deed. A house that transfers through a life estate deed completely avoids probate because it transfers at death, and therefore does not become a part of the Grantor’s estate. 

Benefits of a Lady Bird Deed

  • Ensures that the property passes to the person or people of the Grantor’s choosing by avoiding probate of the property. 
  • Grantor maintains the right to use and profit from the property for their lifetime
  • Grantor maintains the right to sell, mortgage, or even execute a new lady bird deed to the property at any time, without having to obtain the permission or authorization of the grantee on the previously executed lady bird deed. 
  • Grantor avoids making a gift that might be subject to federal gift tax
  • Does not risk the Grantor’s Medicaid eligibility because it is not considered a “transfer” until the Grantor passes away.
  • Prevents the property from being sold upon your death to repay the Medicaid benefits conferred upon the Grantor, because the property passes to the Grantee(s) upon the death of the Grantor and does not become an asset in the estate of the Grantor.
  • You keep your homestead real estate tax exemption, and the county will not reassess the property to raise taxes. 

The Lady Bird Deed and Medicaid

Medicaid is a government program that provides Florida residents with long-term health care coverage. Medicaid benefits are intended for people who can’t otherwise pay for their medical care. To apply for Florida Medicaid, the state’s Institutional Care Program, an individual must provide the Department of Children and Families with a detailed list of all assets.

The purpose is to ensure that all available financial resources are used to pay for care before Medicaid funds are used. The value of all qualifying assets, called countable assets, is calculated and used as the basis for creating a Medicaid eligibility waiting period.

If a time should come when you require long-term care and you apply for Medicaid, the government will impose a five-year “look back” period on your eligibility. This means you cannot transfer ownership of property within five years of making the application. The extent of your eligibility depends on the value of assets you own at the time you apply.

Less is more, and many people erroneously believe they can simply give property away before applying, however, transfers are subject to this five-year period, and assets given away during this time can be pulled back into the value of your estate. Because an enhanced life estate deed allows you to retain control over the property during your lifetime, it doesn’t qualify as a transfer until the death of the Grantor. 

If you receive Medicaid benefits during your life, then after your death the State will make a claim for repayment from any assets in your estate. The State will not be able to make a claim against any property with a valid lady bird deed because the property doesn’t become part of the decedent’s estate. The property automatically transfers into the ownership of the Grantee listed on the lady bird deed. 

Tax Planning and Benefits with a Lady Bird Deed

There are a few tax benefits for a Lady Bird Deed in Florida, such as avoidance of the Federal gift tax. The Lady Bird transfer is an incomplete gift, meaning there is no requirement to file a gift tax return. There has not been an effective transfer during the owner’s lifetime. Moreover, the Florida Department of Revenue assesses minimum documentary stamp taxes on Lady Bird Deed property transfers as long as the grantor of the deed is the same person who retains the life interest. This means that your documentary stamp taxes would only be based upon a sum of $10.00 consideration, instead of the value, or sales price of the home. This can potentially save your heirs a few thousand dollars. If the deeded property is a homestead, there will be no loss of homestead tax exemption and the county will not reassess the property to raise taxes. 

Estate Planning with a Lady Bird Deed

A lady bird deed, if done correctly, can be a very useful estate planning tool. There are many advantages of using a Lady Bird deed over other types of deeds. If you feel that this type of deed may be beneficial to you, would like more information or would like to discuss other possible options, please give The Orlando Law Group, PL a call at (407) 512-4394. 


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airbnb Miami Beach

The Airbnb Miami Beach Battleground is Heating Up

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Airbnb Miami Beach property owners face another setback

An appeals court in Miami Beach has overturned a temporary injunction that prevented the city from cracking down on short-term rentals like Airbnb Miami Beach properties. The injunction was a small victory for Airbnb in a bigger fight against the city that has the potential to put hundreds of home-sharing hosts out of business. With the injunction overturned, the city of Miami Beach Code Enforcement can now investigate and fine home owners who offer part or all of their property as short-term rentals through websites like Airbnb and other home-sharing portals.

As of the end of 2017, the city had issued more than $6 million in fines, but only managed to collect a small fraction of that, totaling just over $100,000.

Recently the action against homeowners has taken a bizarre twist and crossed beyond monetary values. 

airbnb Miami Beach

Miami Beach shuts off a home’s water and electricity over delinquent Airbnb fines

Miami Beach homeowner, Ralph Serrano, recently had his home’s water and electricity shut off by the city of Miami Beach when he refused to pay fines for operating an Airbnb in the city. 

In November, Serrano filed a lawsuit against the city and cited that the city used “strong-arm tactics” in their efforts to collect “constitutionally excessive fines” that summed to more than $200,000. In early December a district judge ordered the city of Miami Beach to restore the utilities to the property. 

Before filing the lawsuit, Serrano attempted to communicate with the city about getting his utilities restored. When he did, city officials demanded he, among other things, ask Airbnb and other short-term rental websites to permanently remove his rental listing. Serrano notes that in the city zoning ordinance that permits Miami Beach to target homeowners who list their properties on Airbnb, nowhere does it say that the city can terminate utilities or request homeowners remove their rental listings on home-sharing websites. 

What is Airbnb?

Airbnb is the world’s largest home-sharing or accommodation-sharing website. Through the website, property owners  list their spare rooms or entire homes for rent to website visitors. The properties are listed in the Airbnb marketplace and are accompanied by descriptions, pictures, ratings, and reviews. 

The website launched in 2009 and as of last year, helps over six million travels a year find accommodations among the 800,000 properties spread across 35,000 cities in close to 100 different countries. 

airbnb Miami Beach

How does Airbnb work?

Through the Airbnb marketplace, people rent out their properties to guests. The transactions are handled through the marketplace and Airbnb profits by taking 3% commission on each booking from the owners. Airbnb also takes between 6% and 12% from guests. 

This arrangement allows homeowners with spare space, or unused homes, to make a substantial income while guests can stay in desirable locations for a fraction of the cost of high-end hotels. 

Airbnb is used by a variety of demographics, from the average traveler to celebrities. For example, in 2016, celebrity Kylie Jenner rented a Miami Beach villa from Airbnb. The Hibiscus Island villa is worth more than $12 million, and the Airbnb rate is $8000 per night during the city’s Art Basel event. We’re guessing nothing was available on Star Island. 

What are the legal issues with Airbnb Miami Beach?

According to the city of Miami Beach, vacation and short-term rentals are those in which the accommodations for a guest or group last less than six months and one day. While a popular alternative to traditional accommodations at hotels and resorts, there are some limitations that need to be considered. 

Pursuant to the Miami Beach City Code (Sec 142-1111), home-sharing, vacation, and short-term rentals are prohibited in all single-family homes and in a majority of multi-family homes in certain zoning districts of Miami Beach. Here’s a map showing the short-term rental limitations. 

In order to become an approved vacation or short-term rental, the owners must organize the proper authorization and zoning approval for operating residential short-term rentals

If a property is discovered to be illegally operating a short-term rental, the guests and owners will be immediately evicted. From there, fines starting at a wallet-thinning $20,000 will be levied. 

Why does Miami Beach want to prevent short-term rentals like Airbnb?

Many people wonder exactly why the city of Miami Beach is working to criminalize residential short-term rentals. In short, it’s difficult to pinpoint. Miami Beach Mayor Dan Gelber has said that “Airbnb’s business model is not compatible with the kind of recognition that short-term rentals are not broadly in the public interest in cities…so they’re either going to fight or they’re going to change.”

There’s a heated political conversation about wither services like Airbnb are harmful to the economies of urban areas. At the same time, others are shining the spotlight on Miami-area officials who are driving to protect the area’s behemoth hotel industry. That’s a position that might have some traction. In 2017, leaked emails from then-Mayor Thomas Regalado’s office showed evidence of coordination with hotel lobbyists looking to implement a ban on short-term rentals. 

In any case, the bans, restrictions, and fines appear to be here to stay.

airbnb Miami Beach

Where does Airbnb go from here?

At this point, Airbnb appears to be on the losing end of this battle with Miami Beach. But the company might want to take an optimistic approach. There are many indicators that the fines for short-term rentals in Miami Beach are unrealistically high. Miami Beach commissioner John Alemán was quoted as saying that the city’s $20,000 fines are “grossly disproportional.” 

Could that be the foothold Airbnb and others need to gain traction in this scrimmage against the city of Miami Beach? Time will tell.

While we wait for the outcome, our advise to you, if you are planning a trip to Miami Beach, is to be excessively cautions if you elect to use Airbnb. The last thing you want is to come back to your crash-pad from a stroll on the Lincoln Road Mall to find the power out and your belongings, and you, evicted from your accommodations. Chances are slim that Kyky will let you crash with her and her entourage on Hibiscus Island. 

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Photo of Jennifer A. Englert - Attorney and Managing Partner of The Orlando Law Group

Lady Bird Deed – Estate Planning’s Best Kept Secret

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OLG LEGAL COMMENTARY:
Jennifer Englert
OLG Founder & Managing Partner

Photo of Jennifer A. Englert - Attorney and Managing Partner of The Orlando Law Group

What is a Lady Bird Deed?

Also known as an enhanced life estate deed or a ladybird deed, a Lady Bird Deed is a way to transfer property to someone else outside of probate, and it allows the original owner to retain control of the property and pass it to exactly who he or she wants to after death.  Basically the original owner (grantor) signs a deed stating when he or she dies the person who the property is deeded to (grantee) will automatically receive the property.  In the meantime, the grantor has all right over the property including the ability to sell if he or she wants to.

Further, because you retain the rights to your property during your lifetime, the deed is simply disregarded for Medicaid purposes.  This means that a transfer of Lady Bird Deed will not negatively affect your Medicaid eligibility.

Lady Bird Deed Advantages

A Lady Bird Deed has many advantages that should be considered, including:

  1. Avoiding probate since the transfer of property can happen outside of probate.
  2. Better control by the property owner who is allowed to, for example, sell or gift the property at will.
  3. Since Lady Bird Deeds are not considered a transfer of property and the property owner retains the right to use the property, the Lady Bird Deed typically does not affect qualification for Medicaid benefits.
  4. There are several tax benefits to a Lady Bird Deed, including the avoidance of filing a gift tax on the property transfer.
  5. Many of the advantages of a transferring property under a living trust are similar to those achieved with a Lady Bird Deed. The advantage of the latter is that establishing a Lady Bird Deed is much less costly than creating a living trust.

In the state of Florida, it is also important to know that homestead or primary residence is exempt from creditors’ claims.  Not only does a Lady Bird Deed protect this aspect of Homestead property and retain the homestead exemption, it can also potentially protect the property from a divorce settlement in certain cases.  As the property remains Homestead it also retains the Homestead exemption for property tax as long as it is drafted appropriately.

While a Lady Bird Deed should not be a replacement for a full estate plan, it is a good place to start and it often belongs as part of an estate plan unless your only heir is your spouse in which case Homestead passes directly to him or her in the event of death without the need for probate. Without this type of deed even a Homestead property will need a Judge to sign off on the transfer in a probate proceeding unless it is passing to your spouse who is still alive.

How was the Lady Bird Deed named?

You might be wondering how the Lady Bird Deed got its name. When the deed was created in Florida in the 1980s, the creator used President Lyndon Johnson’s family names in the example of how the deed works. President Johnson’s wife’s name was Lady Bird and from that example, the deed was named.

The probate and estate planning team at The Orlando Law Group has this and many other strategies at its disposal to protect you and your family assets.

Jennifer Englert is the managing partner and founder of The Orlando Law Group, PL. For over 15 years, she has focused on business disputes, business law, general civil litigation, special needs & education law, family law, personal injury, and real estate. She has represented entities and individuals in both federal and state trial and appellate courts.

Founded in 2009, The Orlando Law Group, has been named one of the fastest-growing law firms in Central Florida and through America [ranked No. 105 among the top 500 fastest-growing law firms in the United States, per the 2017 Law Firm 500]. It has earned a reputation as the Orlando-area law firm that cares about its clients and the communities it serves. Offices located throughout Orange and Seminole counties. To contact Englert, or for more information about The Orlando Law Group, please visit www.TheOrlandoLawGroup.com or phone 407-512-4394.

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Photo of Jennifer A. Englert - Attorney and Managing Partner of The Orlando Law Group

Florida COA and HOA Restrictions on Solar Panels; What You Need To Know

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OLG LEGAL COMMENTARY:
Jennifer Englert
OLG Founder & Managing Partner

Photo of Jennifer A. Englert - Attorney and Managing Partner of The Orlando Law Group

Whether you are a member living within a development governed by a homeowners association (“HOA”) or a condominium owners association (COA) and interested in installing solar panels on your home, or a member of the Board of Directors of a HOA, COA, or its respective architectural review committees, (ARC), in Florida, it would behoove you to become familiar with Florida Statute 163. It is essential that you understand what F.S. 163 says about COA and HOA restrictions on solar panels in so far as its governance and application to energy saving devices such as solar panels and F.S. 163’s effect on the governing documents of your association.

Clearing the confusion about COA and HOA restrictions on solar panels.

As one would guess, the primary area of dispute in an association controlled development is not usually the use of solar panels or whether energy saving devices are permitted or not, but rather, where those panels may or may not be located on the roof of the home or condo. May the solar panels be seen from the street? May the solar panels face the street or fence line? These are some of the questions about HOA restrictions on solar panels that Florida Statute 163 governs and attempts to answer. Florida Statute 163.04(2) expressly prohibits homeowner and condo associations from preventing its members from installing “solar collectors, clotheslines, or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels covered by the deed restriction, covenant, declaration, or binding agreement.” Id. However, that very same statute and subsection does permit associations to “determine the specific location where solar collectors may be installed on the roof within an orientation to the south or within 45° east or west of due south if such determination does not impair the effective operation of the solar collectors.” Id.

Recommendations for homeowners interested in installing solar panels in a COA or HOA governed community.

Clearly there are limits to HOA restrictions on solar panels. With this being stated, it is recommended that even though the association cannot deny the homeowner the ability to install energy saving devises such as solar panels on their property, that the member should still follow the applicable procedures set forth by the architectural review committee before any such installation. In conjunction with this issue, the architectural review committee of each association should also develop a well thought out Solar Policy. This policy should address solar and roof energy saving issues within an application to be submitted by all homeowners/condo owners before the installation of such devices. The application should address, among other issues particular to your development, a satellite or aerial image of the roof with the proposed locations of the solar panels; roof slope and angles; north/south orientation; clear illustration of any shading issues; manufactures product information for the units to be installed on the home; and for those homes intending to install the solar panels on a street-facing front roof that is not within 45 degrees of due South and faces the street, an explanation of why installing the solar panels on the other available roof space would not be equal to or more efficient than, that the street facing roof. Ensuring that the home/condo owner and the association are all on one page and at least attempt to resolve any disputes prior to the installation process can potentially save both the association and member thousands in litigation expenses, noting here that F.S. 163.04(3) does award the prevailing party to any such litigation, its attorney’s fees, and costs.

If you are a member of an association or on the Board of an association and are having problems with Florida Statute 163 and its applicability to your governing documents, please contact The Orlando Law Group and schedule an appointment to speak with one of our outstanding attorneys about your problems and concerns.

Jennifer Englert is the managing partner and founder of The Orlando Law Group, PL. For over 15 years, she has focused on business disputes, business law, general civil litigation, special needs & education law, family law, personal injury, and real estate. She has represented entities and individuals in both federal and state trial and appellate courts.

Founded in 2009, The Orlando Law Group, has been named one of the fastest-growing law firms in Central Florida and through America [ranked No. 105 among the top 500 fastest-growing law firms in the United States, per the 2017 Law Firm 500]. It has earned a reputation as the Orlando-area law firm that cares about its clients and the communities it serves. Offices located throughout Orange and Seminole counties. To contact Englert, or for more information about The Orlando Law Group, please visit www.TheOrlandoLawGroup.com or phone 407-512-4394.

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Photo of Jennifer A. Englert - Attorney and Managing Partner of The Orlando Law Group

New Tax Law Impacts Real Estate Tax For Home Owners & Investors

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OLG LEGAL COMMENTARY:
Jennifer Englert
OLG Founder & Managing Partner

Photo of Jennifer A. Englert - Attorney and Managing Partner of The Orlando Law GroupIt may be difficult to ascertain what exactly has changed under the new Tax Cuts and Jobs Act and how these changes may affect real estate tax for home owners and real estate investors. This article will provide an overview of how the new Tax Cuts and Jobs Act will affect real estate, whether you own just your home, or you are a real estate investor, by identifying the information you need to know about each major provision.

Real Estate Tax Change: Capital Gains Exclusions

Effective on January 1st, 2018, homeowners can exclude up to $250,000 (or $500,000, if married filing jointly) of gains made from the sale of their primary residence, as long as the property was their primary residence for at least two of the five years prior to the sale. Under the new law, this exclusion may be claimed once in a two-year period.

If you have sold or plan to sell your home after December 31st, 2017, this provision of the new law will apply to you and you must have used the property as your primary residence for the required two-year period in order to claim this exclusion. If you sell a home that was not your primary residence, then you will not be able to claim this exclusion and you must pay capital gains on the sale. This provision of the new tax law will expire on December 31st, 2025.

Mortgage Interest Deductions

Under the previous law, homeowners could deduct the interest paid on mortgages valued up to $1 million on their principal residence and one other qualified residence. Homeowners could also deduct the interest paid on a home equity loan or home equity line of credit up to $100,000. Effective on January 1st, 2018, homeowners can include interest paid on the mortgage for a new home valued up to only $750,000 in their itemized deductions, which is less than the previous home valuation limit. Furthermore, under the new law, homeowners can no longer deduct interest paid on home equity loans.

If you are a new homeowner in 2018, these real estate taxation provisions of the new law will apply to you. If you are a current homeowner who took out a mortgage on or before December 15th, 2017, the new law will not apply to you and the previous $1 million cap will continue to apply. The previous law will also continue to apply to refinancing on mortgages taken out on or before December 15th, 2017, as long as the new mortgage amount does not exceed the amount of debt being refinanced. These provisions will expire after 2025.

As for second homes, under the previous law, homeowners looking to purchase a vacation home could deduct mortgage interest on a second home, as well as on their primary residence, as long as the combined mortgages were under the $1 million limit. Under the new law, this is no longer permitted, and mortgage interest may not be deducted for second homes. However, if you purchased a vacation home prior to 2018, you may continue to take advantage of any mortgage interest deductions you were previously eligible for.

State and Local Real Estate Tax Deductions

Under the previous law, all state and local property taxes (“SALT”) were deductible in the federal tax filing with no limit. The new law only allows homeowners to deduct up to $10,000 for SALT, for both individuals and married couples. While SALT deductions are now limited, standard deductions have increased, and it may no longer make sense for homeowners to itemize deductions. Under the new law, the standard deduction for taxpayers doubles to $12,000 for individuals and $24,000 for those filing jointly.

Bonus Depreciation Deductions

Qualifying property acquired and placed in service after September 27th, 2017, is eligible for a 100% bonus depreciation in the year it is placed in service. This first-year bonus depreciation has increasedfrom 50% under the previous law. Beginning in 2023, this rate decreases by 20% per year, until it is eliminated in 2027. Also new under the tax law is that 100% expensing is available for both new and used qualified property. Qualified improvement property includes leasehold improvement property, restaurant property, and retail improvement property.

Like-Kind Exchanges

Section 1031 exchanges allow real estate investors to take the profits from the sale of a property and move them tax free into a like-kind property. This allows investors to exchange properties without paying capital gains taxes immediately, by deferring payment until the replacement properties are sold. This exchange is still allowed under the new real estate tax law for real property, although it has been repealed for personal property.

Other Provisions

  • Casualty Losses: Under the previous law, taxpayers could claim an itemized deduction for property losses that were not covered by their insurance and which resulted from events such as natural disasters and fires. The new law restricts this deduction to only allow losses resulting from a disaster declared by the president to be deducted.
  • Moving Expenses: Under the previous law, taxpayers could deduct moving expenses and related travel costs. Beginning on December 31st, 2017, the new law eliminated this deduction through December 31st, 2025. The only exception to this provision is for member of the military on active duty who are required to move pursuant to a military order.

While this article provides an overview of the how the new tax law, known as the Tax Cuts and Jobs Act, may affect your home or real estate investment business and how you, it is important to consult with your attorney regarding all of the factors that may affect you as the new tax law could have further implications on your personal situation.

Jennifer Englert is the managing partner and founder of The Orlando Law Group, PL. For over 15 years, she has focused on business disputes, business law, general civil litigation, special needs & education law, family law, personal injury, and real estate. She has represented entities and individuals in both federal and state trial and appellate courts.

Founded in 2009, The Orlando Law Group, has been named one of the fastest-growing law firms in Central Florida and through America [ranked No. 105 among the top 500 fastest-growing law firms in the United States, per the 2017 Law Firm 500]. It has earned a reputation as the Orlando-area law firm that cares about its clients and the communities it serves. Offices located throughout Orange and Seminole counties. To contact Englert, or for more information about The Orlando Law Group, please visit www.TheOrlandoLawGroup.com or phone 407-512-4394.

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IN THE PROCESS OF PURCHASING OR SELLING A HOME WITH A HOMEOWNER’S ASSOCIATION?

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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.

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, §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 estopple 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.

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 https://www.stateofflorida.com/facts.aspx (StateofFlorida.com) 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 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.

Author: Jeffrey W. Smith, The Orlando Law Group

 

Jeffrey W. Smith is an attorney for The Orlando Law Group. His practice focuses on veteran appeals, family law, and civil litigation. He is a veteran of the United States Marine Corps, serving in Operation Desert Storm in the Middle East and Operation Restore Hope in Somalia. Jeffrey is a graduate of Oviedo High School and lives in Oviedo with his family.

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Now That You’re Elected to the Board, Are You Aware of the Reporting Statute?

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Congratulations! You’ve succeeded in being elected as a member to the prestigious world of your Homeowner’s Association Board of Directors! But are you aware of the certification requirements of Fla. Stat. 720.3033 that could suspend or even end your newly “elected official” career before it’s even begun? As a newly elected Homeowner’s Association Board Member you are required to comply with the reporting requirements imposed by the Florida Legislature through the enactment of Florida Statute 720.3033 as amended on July 01, 2013 and that requires all HOA directors to verify that they are prepared and qualified to serve their respective association board in one of two ways.

The first option via §720.3033(1)(a) is that within 90 days after being elected or appointed to the board, each director shall certify in writing to the secretary of the association that he or she has read the association’s declaration of covenants, articles of incorporation, bylaws, and current written rules and policies; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members.

The second option via §720.3033(1)(a) is that within 90 days after being elected or appointed to the board, in lieu of such written certification, the newly elected or appointed director may submit a certificate of having satisfactorily completed the educational curriculum administered by a division-approved education provider within 1 year before or 90 days after the date of election or appointment. Furthermore, according to §720.3033(1)(b), the written certification or educational certificate is valid for the uninterrupted tenure of the director on the board. It would behoove the newly elected or appointed board member to pay heed to this requirement because a director who does not timely file the written certification or educational certificate shall be suspended from the board until he or she complies with the requirement and the board may temporarily fill the vacancy during the period of suspension. However, as a side note, it would be prudent and diligent for the newly elected director to be familiar with and understand both their own associations governing documents and the Florida Statutes applicable to homeowner’s associations.

After you have complied with the reporting requirements of §720.3033, the association shall retain each director’s written certification or educational certificate for inspection by the members for 5 years after the director’s election. However, the failure to have the written certification or educational certificate on file does not affect the validity of any board action as provided in §720.3033(1)(c). It bears noting at this juncture that if for any reason you are removed from or surrender your position as a director prior to the termination of your elected term that you will have to re-certify upon being re-elected or appointed back on the board of directors in the same manner as your initial election or appointment.

If you have any questions about your homeowner’s association please feel free to schedule a consultation with one of the outstanding attorney’s at The Orlando Law Group PL.

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PST 1452

How to Choose a Real Estate Attorney

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So, you’ve done all the legwork, been to the bank, spent weeks and weeks doing the back-and-forth and now you are ready to plunk down on new home. Or maybe you’re starting a new enterprise and buying your first rental property. Perhaps you’re looking to start your own small business and have your eyes on a commercial property.

No matter the type of real estate transaction, the question is the same: Where do you go from here? How will you choose an attorney who can cut through the legal jargon and walk you through the closing process?

Hiring a real estate attorney is an important choice. A real estate transaction usually means that a significant amount of money is about to change hands. That can be a little nerve-racking for most people! The real estate attorney will take over after the selling price and terms have been established by the realtors and all involved parties have signed. She will evaluate the contract, negotiate any repairs based on the home inspection report, work together with the title company, and accompany you to the settlement.

If you already have a relationship with an attorney, you can always ask if he does real estate law as well. Many lawyers have a general law practice and can handle many different types of cases, including real estate law. However, you might not want to consider an out-of-town lawyer friend. A real estate transaction is not the same as drafting a will. A will can be drafted remotely while a real estate transaction is more location-specific. It often requires knowing what is considered reasonable and customary for a particular area. Someone local is an important asset.

If you don’t already know an attorney, you can Google local options, ask your real estate agent if she has a recommendation, or ask friends for referrals. In any of these scenarios, you can schedule a consultation with a few attorneys to help narrow your decision. During the appointment, your goal will be to get a sense for the attorney’s experience in handling real estate transactions. Has she successfully handled several other real estate closings? If he familiar with your particular type of transaction? Will she need to navigate any particular circumstances such as buying a property that is a short sale? It is important that you feel comfortable with her level of experience for your particular kind of real estate transaction.

During your meetings with each attorney, get a clear idea as to how much he charges and a good estimate of how much it will cost you to have him represent you. This should be clear regardless whether the attorney bills by the hour or charges a flat fee. Once you find an attorney who fits your real estate needs, hire him! As you move forward, be sure to provide your attorney with all documents related to your real estate transaction. As you do so, he will learn the ins-and-outs of your transaction and ask any necessary questions before a real estate closing occurs. If there are any problems or issues with your transaction, they can be dealt with proactively.

 

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Need A Real Estate Attorney

Why You Need a Real Estate Attorney When Buying a Home

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For most people, buying real estate is the biggest purchase they will ever make. Before committing yourself to a contract that will affect your life and your wallet for years to come, hire a real estate lawyer. Why – when so much is at stake – would you purchase a property without knowing whether your rights to use the property are in any way limited? Why would you rely on a generic contract that was not written for your specific set of circumstances? And why would you sign it without understanding what everything in it means?

A lawyer will request that all of the documents in the public records relating to the property be provided for her review so that she can fully inform you of matters that will affect your use of the property, such as easements and restrictive covenants, and will be sure that you understand any limitations or restrictions prior to purchase. A lawyer can also develop ways to resolve title issues, such as unpaid liens affecting the property, to keep the deal from falling apart or closing from being significantly delayed. A lawyer can review the survey and discuss any items of concern with you. Realtors and closing agents cannot do these things since they cannot lawfully give legal advice. Wouldn’t you like to know while you could still back out of the purchase that you wouldn’t be able to build that pool you promised your kids because there is a conservation easement that prohibits making improvements in that area of the property? What about learning prior to purchase that the condo you are about to purchase is on the side of the coastal construction line where construction was actually prohibited? Do you want to take the risk of having to evict tenants who decide not to leave after you buy the property? If these are things you would like to know about and be protected from prior to making one of the biggest investments of your life then hire a real estate attorney when you are thinking of purchasing.

And hire that attorney before you sign the contract for purchase. Lawyers are experts in negotiations and contracts. A lawyer can – and should – negotiate changes to the standard real estate contract in order to protect your specific interests far better than a generic form contract would protect them. For example, there are many things that can affect the property in a way that would make it undesirable to you personally but that do not make it unmarketable under a standard real estate contract, such as the conservation easement discussed above. Therefore, you as a purchaser would likely still have to go through with the purchase after discovering those undesirable items under a standard real estate contract. However, a lawyer will know to adjust the standard contract so that all information necessary for a fully informed purchase will be received while you are still able to walk away from the transaction without repercussions. A lawyer can also negotiate to have some or all of your lawyer’s fees paid by the seller when you get the lawyer involved prior to signing the real estate contract.

 

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Kimberly Hosley Agee, The Orlando Law Group, P.L.

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Real Estate Law

What should I do before buying a home in an HOA?

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Beautiful houses. Well-manicured lawns. Good schools. Involved neighbors. These are a few of the perks that come with living in a community that has a Homeowner’s Association (HOA). An HOA is designed to protect the value of your home and maintain order in your community. For example, an HOA makes it tough for a guy like a cousin Eddie to park his dilapidated RV in front of your house during Christmas vacation.

Sounds perfect, right? Well, it might be. But, it’s also not for everyone. The very regulations that protect you, can also limit you or cause legal trouble for you. It’s important to make sure you know exactly what you’re agreeing to before you buy a home in an HOA. Most HOAs manage the common areas and amenities as well as all covenants, conditions, and restrictions (CC&Rs). There are three important documents for you to review before buying in an HOA: the CC&Rs, the homeowners association bylaws, and the HOA budget and financial statements. These, along with any HOA meeting minutes, will help you get a feel for exactly what you are agreeing to by joining the HOA.

Here are some things to consider about your potential HOA:

  • What are the membership dues? How likely are they to rise? When and how are they assessed? Do you need to factor a one-time capital contribution to your closing costs?
  • What do your dues cover? These vary greatly from community to community.
  • Does the HOA limit pet ownership? What about other animals like chickens?
  • How clear are the stipulations about the appearance of your home? For example, can you fence your backyard? Do you have to follow rules about lawn care? Can you paint your front door red? Where should you park your motorcycle?
  • Can you rent your residence to another party?
  • If you don’t meet HOA requirements and try to sneak a chicken coop on your property, can the HOA levy a fine? What is your recourse?
  • If you don’t (or can’t) pay your HOA dues or fines, what steps can the HOA take? Can they foreclose on your home?

CC&Rs and bylaws are extremely difficult to get around, so be sure to review these documents carefully before you buy a home. Be prepared for special assessments on community buildings, especially if they are older. If the roof needs to be replaced, the HOA might collect money from each homeowner to cover the cost.

Lastly, be aware that there have been charges of unscrupulous behavior against some HOAs. Check to see if there is any litigation pending against the HOA and take the time to check its financials as well as its recent assessments (for community fixes or upgrades).

Many people find the pros of an HOA outweigh the restrictions. Our recommendation is simply that you take the time to be sure you know exactly what you’re agreeing to BEFORE you buy your home. A little work on the front end can save you legal hassles down the road.

 

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Lien Property Disputes

Lien Property Disputes

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One huge reason homeowners are unable to buy and sell property are title defects which cause fights over lien priority. An experienced lawyer can help you work through lien priority disputes through quiet title actions, negotiations, or litigation.

Income Taxes: When you forget to pay your taxes, an IRS tax lien arises automatically. This lien stays until it is paid or until the tax assessment expires, which is 10 years. The tax lien lacks priority against listed classes of creditors until the Notice of Federal Tax Lien is filed. Holders of security interests, mechanic’s lien and judgment lien creditors have priority over federal tax liens if they are filed first.

State Taxes: State Tax Liens must be filed before IRS tax liens to have priority, even if the state lien arose automatically because the state taxes were unpaid.

IRS Tax Liens Eliminated:

  1. Certificate of Release where the tax is fully paid or compromised.
  2. Certificate of Discharge which only affects the specific property listed and does not affect taxpayer’s other   property.
  3. Certificate of Subordination where the IRS can subordinate its lien in specific property if the IRS is paid the value of its interest or the IRS believes it will realize more money by issuing the subordination.
  4. Withdraw of the IRS lien can be due to a prematurely filed lien or a lien in violation of IRS procedures or where the taxpayer has entered into an installment agreement where the agreement provides for the withdraw of the lien.

Lis Pendens: The purpose of recording this document is to give claimants constructive notice of a potential lien. The filing of a lis pendens does not perfect a lien. Once determined by a court, the filing may result in a perfected lien.
A document that shows the transfer of a deed of trust from one person or entity to another is an assignment. Some common assignment errors are:

  • Data Errors: Recording an incorrect book or page, or leaving blank the name of the assignee. You cannot fill in the blanks after the document has already been signed and notarized. Missing chain of assignment.
  • Not Recording Assignments: Recording assignments is not required by law, but it does cause title issues. Spend the money and record your assignment.
  • Not Having Uniformity in Recording: With more than 3,600 recording districts in the United States, you need to know the county recording requirements before creating a template. Many have different recording requirements, regulating font size, margins and signatures.
  • MERS: Mortgage Electronic Registration Systems no longer commences legal actions in its name. As a result assignments must be prepared. There is a backlog. There are times when the MERS number is not on the assignment when it is recorded or the wrong number is attached to the loan or MERS forgot to deactivate the number after it has been assigned.
  • Release Not Timely: Once the loan is paid off, a release is required to be recorded.
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How Can a Lawyer Help With a Property and Casualty Claim

How Can a Lawyer Help With a Property and Casualty Claim?

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Property/casualty insurance is insurance on homes, cars, and businesses. Property insurance protects a person or business against the loss of physical property or the income-producing abilities of physical property. Casualty insurance protects a person or business against legal liability for losses caused by injury to other people or damage to others’ property.

Property and casualty insurance may cover things like:

  • Personal auto and watercraft
  • Equipment breakdown
  • Financial institutions
  • Medical professional liability
  • Workers compensation

Insurance coverage disputes can be complicated. Many insurance companies delay, undervalue, or deny outright claims involving property damage and personal liability. Often there is a short window of time to resolve these disputes, involving careful analysis of complicated and inter-related insurance policy forms, the insurance application, history between the insured and the agent, and legal precedent.

An attorney who has experience with property and casualty insurance claims can help you understand how disasters from hurricanes, fires or floods can play a big role in the failure of your business. When a disaster strikes and leaves your property damaged, many business owners turn to their property and casualty insurance for the coverage to rebuild and recover from their loss.

You pay high insurance premiums to ensure your comeback after a devastating loss, it is important that your insurance company steps up to pay when your business is in jeopardy. While some providers help, many insurance companies deny or delay payment to attempt to resolve cases for less than the policy provides. An attorney working for you, can help you obtain the full compensation for property and casualty losses that you deserve.

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What Are the Rights and Duties of Landlords in Florida?

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When you rent a house or apartment, you enter into a legal contract known as a rental agreement. This agreement does not have to be in writing, but if it is, it’s called a lease. As a landlord you have certain rights; you also have certain duties. Your obvious right as a landlord is to receive rent for the use of the property. Another important right is to have your property returned to you undamaged at the end of the agreement. It should be returned in the same condition in which it was received, except for ordinary wear and tear.

As a landlord, it is your duty to provide a home that is safe, that meets housing code requirements, and to come out, or hire someone to come out and make repair on the home hen necessary. It is also your duty to respect the tenant’s rights, just as they are required to respect yours. One of the most important of these is the right of peaceful possession. By renting to the tenant, you give them the possession and use of your property free from interference. That means that you may not enter the home frequently, at odd hours, or without notice. Rights relating to reasonable inspection are often set forth in a written rental agreement, as well as in Florida law. You have a right to protect your property through inspection, but you must give the renter reasonable notice. You don’t have the right to show the property to possible buyers without coming to an agreement with the tenants first.

To end the tenancy, if the unit has no written rental agreement or if the lease does not state otherwise and is rented on a month to month basis, you must give at least 15 days notice in writing prior to the end of any monthly period to terminate the tenancy; a week to week rental period requires seven days notice prior to the end of any weekly period. This notice must be in writing and should be delivered personally to the tenant, but may be posted at the door. If the written rental agreement requires that the tenant give notice of up to 30 days before leaving the unit, the landlord is also required to give the tenant the same notice period that the landlord does not intend to renew the lease.

If the tenant permanently moves out before the end of the rental term and leaves your property vacant, this is usually considered as an abandonment of his or her rights. The law presumes an abandonment if the tenant is absent for at least 15 days without previously notifying you of his or her intent to be absent. After abandonment, the landlord may then re-enter the dwelling unit. The situation is more complicated if the tenant seems to have gone away but has left some of his or her personal property on the premises or there is a considerable amount of unpaid rent. You should consult an attorney before trying to dispose of the tenant’s possessions or re-renting the property.

If a tenant fails to pay the rent or refuses to move out at the end of the rental term, as the landlord you have the right to evict them. You have taken the proper legal steps to commence an action for possession according to specific timetable. You must serve proper notice or notices on the tenant to terminate this rental agreement. If you decide to file the claim yourself in county court, you should have an attorney review the notices you have given and the ways you have served them to make sure you have properly observed all of the necessary requirements of the timetable. Mistakes can result in serious delay in your regaining possession of your property.

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How Can a Lawyer Help When You’re Facing Foreclosure?

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Having your home foreclosed upon can be a very stressful experience for you as a homeowner. Financial hardship is often unexpected, and even with your best efforts, keeping up with the mortgage payment is sometimes impossible. Depending on how long your situation lasts, it could result in losing your home to foreclosure.

A lawyer can work with you and the mortgage company, serving as a mediator to help negotiate the terms of your foreclosure and reverse the foreclosure process when that is possible, saving your home. Depending on your specific set of circumstances, that may not always be possible, and in that case, your attorney can work with you to decide what option is the best for your situation and may even be able to provide some guidance on ways to minimize damage to your credit and finances.

In Florida, foreclosures are judicial, which means the lender must file a lawsuit in state court. The lender initiates the foreclosure by filing a complaint with the court and having it served to the borrower, along with a summons. If you lose the case, the court will enter a judgment of foreclosure and the property will be sold to satisfy the debt.

Whenever a home faces foreclosure, an attorney is able to slow the process in order to buy you some time to get your finances in order. Once an attorney becomes involved in the situation, the mortgage company’s legal department must communicate with the attorney and this can slow down the foreclosure substantially. In addition, an attorney can negotiate a repayment plan that works for you, with the lender. You can discuss refinancing yourself, with your mortgage lender, but, an attorney knows all of the right questions to ask in order to ensure the best chance of negotiation. A mortgage company may also be somewhat more willing to listen to an attorney than to a person in financial trouble.

The best way to prevent a foreclosed home is to budget carefully and always have enough money set aside to pay for your housing costs. If an emergency financial situation does occur, deal with it right away; ignoring it will not make it go away. Communicate with your mortgage company any time you experience a financial hardship, you can ensure your best chances of keeping your home. When this is impossible, an attorney can help to stop the foreclosure whenever possible.

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Does a Florida Real Estate Buyer Need a Lawyer

Does a Real Estate Buyer Need a Lawyer?

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When you are purchasing a new home or piece of land 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 is kind of complicated and having a lawyer to look out for your interests is a good thing. Your lawyer will help prepare and negotiate a purchase contract, help you through the buyer’s due diligence inspection period, and then review deed, title insurance commitment and other closing documents your behalf.

The real estate buyer’s lawyer can do the following:

  1. Assistance during the Due Diligence Inspection Period. 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. A lawyer 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 (patent) and non-obvious (latent) defects. These might be in the building, land, air or water. They could be environmental, structural, mechanical, electrical, or otherwise. There is an ancient Latin saying, Caveat Emptor, which means “Let the buyer beware.” This mean that the seller was not obligated to tell the buyer about defects known by the seller. With regard to residential real estate, this ancient rule no longer applies. However, it still applies in Florida to commercial real estate, so it is even more important for commercial real property buyers to do their due diligence inspections. As a residential homebuyer, it is still important to inspect because sellers are not obligated to tell you about defects they are not aware of; you may discover something they didn’t catch.
  2. Drafting a Clear Contract. A real estate lawyer can assist in drafting a clear contract that states what you, the buyer expects to buy in the transaction. Sometimes this is done with a standard form such as the FAR/Bar form issued by the Florida Bar and Florida Association of Realtors or the FAR forms issued by the Florida Association of Realtors. Often, a lawyer will prepare addenda to these standard forms to clarify aspects of the transaction. Sometimes, however, the lawyer prepares a form specifically for the particular transaction rather than using a standard form that has many provisions that are not applicable to the particular case.
  3. Follow-up on Deadlines. All contracts for the purchase of real property should include deadlines for such matters as inspections, financing, title insurance, surveys, closing, etc. To avoid breaching the contract, it is important to comply with these deadlines. A lawyer can assist you in meeting contract deadlines.
  4. Reviewing Closing Documents. Legal documents can be written to include representations and warranties that are binding upon sellers after the closing, in a way that may obligate them to pay damages to the buyer even years after the closing. Sellers may try to avoid using this wording so that any discovered defects are buyer’s sole problems. Without an attorney you may not have the benefit of including this wording in the contract, deed and other documents. Since the seller’s goals are to get paid and avoid litigation, it is important to include seller’s representations and warranties in contracts and deeds. Lawyers know which warranties and representations are standard and which are not and which can be negotiated.
  5. Cost-Benefit of Legal Advice. The benefits of having a lawyer come at a cost: legal fees. Buyers who do not have lawyers do not pay legal fees; at least, not unless or until a breach or defect is discovered. Legal fees in litigation are expensive because it is fueled by opposing parties with opposing claims and positions. Legal fees you may pay to a lawyer to advise you before signing a contract to purchase and before closing on the contract are much less than legal fees you may pay in litigation. It is best to hire a lawyer to assist in assessing and minimizing the risks of the purchase transaction to the extent possible.

Therefore, as a buyer of Florida real estate, whether it is residential or commercial, you should always engage a real estate lawyer to assist you in the transaction. That way you have someone legally on your side.

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Trying for Modification with HAMP

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HAMP, the government’s making homes affordable modification program, which provides financial incentives to loan servicers to modify the loans of troubled borrowers has fallen short of its goals because many borrowers did not meet eligibility requirements and loan servicers were not required to participate, according to the U.S. Treasury Department.

Many attempts to modify loans also were sidetracked by second loans which were a popular means of avoiding mortgage insurance during the boom. So far this year, loan servicers have done twice as many loan modifications outside of the HAMP program as in it, with 81 percent of modifications completed in October done outside of HAMP. The government lost its authority to restructure HAMP which expired on October 3 but there are still steps it is looking at including enabling borrowers to apply for loan modifications online and intervening when borrowers are falling behind on HAMP-modified mortgages.

The good news is that half of homeowners who applied for HAMP modifications but did not qualify have received a loan modification outside of the program. Servicers must evaluate homeowners who do not qualify for HAMP or who have fallen out of HAMP to see if they qualify for alternative loss mitigation programs or private modification programs. Therefore, if you are thinking about trying to modify your mortgage you should and you should try the HAMP program. Be patient and be prepared to provide the requested documents more than once. However, if you are rejected by HAMP do not give up and keep trying through other programs your lender may offer as it is a much better climate for modifications than it was even a year ago.

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© 2019 The Orlando Law Group.