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

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Overview:

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

Digging Laws:

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

Other Important Considerations:

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

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

Overall:

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

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The Ins and Outs of the Association Collections Process

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

How does the Foreclosure Process Work?

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

What if there is a Tenant in the property?

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

Other Frequent Questions Regarding Association Collections

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

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

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

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

  • What is the process for a Personal Judgement?

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

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

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

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

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

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

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

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

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

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

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

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

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

  • How do you collect post-petition assessments?

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

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

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

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Breaking Down Florida Bill 4-D

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Overview

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

Recertification

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

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

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

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

Reserve Funds

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

Other Important Laws Impacting Condos

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

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

Overall

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

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

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Overview

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

What is a Deed?

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

What is a Signature Witness?

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

What are the Requirements to be a Witness?

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

Can My Family Member Serve as a Witness?

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

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

Conclusion

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

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

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

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Overview

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

About the Florida Scrub-Jay

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

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

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

A Threatened Wildlife Species

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

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

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

Avoiding Development or Property Issues Involving Florida Scrub-Jays

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

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

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

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

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

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

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

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

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

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

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REAL ESTATE AGENTS – WHEN A CLIENT NEEDS PROBATE

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

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

FORMAL ADMINISTRATION

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

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

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

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

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

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

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

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

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

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

SUMMARY ADMINISTRATION

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

AGENT PERSPECTIVE

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

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

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

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

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Five Types of Deeds to Transfer Property In Florida

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In Florida, a Deed is required to transfer ownership of a piece of property, regardless of whether that property consists of buildings or vacant land. Contrary to popular opinion, the title to the property is not conveyed by the Mortgage in Florida (the Mortgage creates a lien on the property). There are five (5) main types of Deeds in Florida that will be addressed in this article: (1) Warranty Deed; (2) Special Warranty Deed; (3) Quitclaim Deed; (4) Life Estate Deed; and the (5) Enhanced Life Estate Deed (Lady Bird Deed). Each of these Deeds have different affects that come with each of these Deeds, and it is important to know when receiving a property what type of title you will be receiving.

  • Warranty Deed- Conveyance

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

  • Special Warranty Deed- Conveyance

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

  • Quitclaim Deed- Conveyance

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

  • Life Estate Deed- Estate Planning

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

  • Enhanced Life Estate Deed- Estate Planning

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

Conclusion

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

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Clarifying What a Deed Is

Clarifying What A Deed Is – Four Types and Uses

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

What does a Deed specifically do?

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

What is the Difference Between a Deed and Title?

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

Why are there multiple types?

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

What is a General Warranty Deed?

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

What is a Special Warranty Deed?

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

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

What is the Quitclaim Deed?

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

What is the Ladybird Deed?

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

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

Does a Mortgage Convey Title?

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

Using the Right One

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

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Clarifying What a Deed Is

Clarifying What A Deed Is – Four Types and Uses

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

What does a Deed specifically do?

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

What is the Difference Between a Deed and Title?

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

Why are there multiple types?

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

What is a General Warranty Deed?

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

What is a Special Warranty Deed?

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

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

What is the Quitclaim Deed?

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

What is the Ladybird Deed?

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

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

Does a Mortgage Convey Title?

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

Using the Right One

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

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key

The Current State of Foreclosures, Evictions, and Real Estate

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

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

The Extensions Continue

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

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

Payments Will Be Due

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

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

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

Sophia Dean, Attorney at The Orlando Law Group

The Impact On The Real Estate Market

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

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

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

Michael Curtin, Commercial Broker at Hive Commercial Realty

Our Key Takeaways

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

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

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Eviction notice and gavel on a table.

The Tidal Wave of Evictions Begins to Break

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

What makes the latest Moratorium different?

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

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

Why is Central Florida vulnerable?

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

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

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

A Truly Difficult Dilemma to Solve

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

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

The lasting Repercussions

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

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dog

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

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

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

THE DIFFERENCE BETWEEN A SERVICE ANIMAL AND AN EMOTIONAL SUPPORT ANIMAL

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

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

THE AMERICANS WITH DISABILITIES ACT

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

NAVIGATING THE FINE LINE

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

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

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houses

You Should Never Make These Real Estate Mistakes

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The Real Estate industry is filled with victories, losses, and mistakes. The fact that there are so many Realtors and so much business being conducted means that there is a high propensity for ingenuity as well as massive opportunities for pitfalls. You may have passed the Real Estate exam, and you may have a handful of experience on your resume, but that does not mean you have experienced it all. That does not mean that you are infallible. Whether you’re a Realtor working in the industry for the first time helping someone sell their home and upgrade or a seasoned investor looking to gain your next big investment property, these are great reminders of what not to do.

Over the years, many real estate and small business owners across the U.S. have witnessed numerous mistakes that have cost them thousands of dollars in overpaid taxes. We at The Orlando Law Group do not want that to be you (if it ever is call us). We want you to have a deep understanding of the mistakes people make before you must litigate. If you are looking to invest or simply finding ways to run your business like a business, never make these Real Estate mistakes:

Personal funds used for business and real estate expenses are nondeductible

If you are going to use your own personal funds to pay for real estate or business-related expenses, it is important that you are clearly tracking the expenses. Any expenses that are incurred for the business or for real estate are generally deductible, even if you use your personal money. The line between the two should be quite bold, and there should be distinct differences between personal finances and business finances. We have all heard of

Overpaying (Tipping) the IRS will make me “Audit Proof”

Rather than go over, or under, when dealing with taxes it is best to get it right. Err on the safe side and always pay exactly what you owe to the IRS. If you constantly under pay your taxes or cannot substantiate your deductions, then the IRS starts to take notice.

Even if you tip the IRS in one area, it does not necessarily mean the IRS will not make you pay penalties if you underpay in another area. Additionally, it is important for you to make sure to track everything correctly and have the right documentation. To ensure this, it would be best to have a knowledgeable tax advisor to help you with the process.

You are allowed more deductions by being incorporated

If you have a legal entity to operate your real estate business from, make sure to use it correctly. Forming a legal entity does not actually mean that you get more tax deduction. Real estate or business-related expenses may be deductible regardless of where it is paid from. Make sure that your income is being paid to your legal entity. If you need help setting one of these up, we are here to assist you. So many individuals think that they can run a business without being incorporated, but there are real advantages to going through the necessary steps. We can show you how.

Utilizing the Home Office Deduction Incorrectly

Currently, the above statement no longer applies. In fact, since there are so many people that work from home, the IRS cannot audit all tax returns claiming home office deduction. The key is to keep excellent records to satisfy the IRS’s requirements and you should avoid an audit. Make sure to benefit from the home office deduction, and if you have any questions about grey areas, reach out to us. We have worked with many individuals who run their business from a home office, some for many years of their life.

Claiming Deductions That Are Out of the Scope of Your Business

There are still ways to claim many deductions from your real estate business even if you do not take the home office deduction. Some of the items that you can still take deductions for include: real estate maintenance supplies, business-related phone bills, travel expenses, wages paid to contract workers for property improvements, depreciation of equipment used, and other home-based related expenses. Claiming items on your deductions can sometimes be treated like an art rather than a science. We recommend having a scientific, consistent, and tested approach. Never make assumptions by yourself, and include others’ perspectives to make sure you’re claiming the right items.

Filing an extension gives you an extension to pay any taxes owed

Even though filing an extension allows you to extend the filing date of your tax return, it does not extend the time you have to pay the taxes that are due. You still might be charged penalties and interests from the date your taxes are due if you have not submitted them on time. Make sure you set a schedule and keep to that schedule. If you need to, set reminders. Have business partners hold you accountable, and do not let taxes owed build up over time.

You Cannot Deduct General Expenses

Real estate investors have proven to be great at deducting property specific expenses such as mortgage interests, management fees, property taxes, and insurance. However, a lot of investors miss out on general and overhead expenses that real estate businesses have. These include car or travel expenses, marketing expenses, cell phones, and meals. If these expenses are directly related to your business, then they can be deducted. The key is having them planned and managed. With a good budget and great records, you will be able to successfully communicate where your business falls in terms of deductions.  

Everyone is used to filing taxes every year, but big businesses try to look at their expenses quarterly. Attaining tracking practices that will maintain good habits and records is vital to understanding what occurs financially over time. Without systems and processes that you hold onto, it becomes easy to have details fall through the cracks.

We at The Orlando Law Group want you to stay aware of the mistakes that others often make. They may seem simple, but when you are running your business, it is easy to get lost in the day-to-day tasks and forget about these overarching items. As always, when there are grey areas involved, it is best to consult a legal professional. We take taxes seriously, and so will the government. We have seen cases where, if the business had been more preemptive and planned better, they would not be in the middle of an audit. This is only meant to encourage you to have a plan, know the pitfalls, and when you need advice, call us. We want to help, and we are here to make your life easier and your business that much better.

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commercial leases

Commercial Leases: What You Need to Know Right Now

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Courts have been slow to reopen and deal with eviction issues. Commercial lease evictions are able to continue, but practically they will still take time to get through the courts, so now is the time to try to work things out if possible to save time, money, and stress. Some considerations to think about with your commercial lease are as follows: 

Considering How Shopping Center Commercial Leases are Unique  

The fact that shopping center leases have co-tenancy provisions makes them unique and could grant tenants more options in court. The goal of this co-tenancy is to ensure that stores do not miss out on opportunities because other stores are closing and causing a continual downswing in foot traffic. In terms of the battle between landlords and tenants, tenants may have a potential argument that the landlord has not fulfilled its co-tenancy obligation. 

It is important to note that one of the factors that many tenants’ arguments will stand upon is whether COVID-19 indeed prevented them from paying their rent. One of the considerations that many landlords are taking is the potential to fill the spot that would be left vacant.

Factors that will affect such decisions include supply and demand as well as how desirable the location is. It may even be more advantageous for landlords to settle disputes out of court, but we are certain once the moratoriums subside, the courts will see an influx.   

What Exactly Is Co-tenancy and How Could It Apply?  

When more than one entity has an interest in a property, co-tenancy agreements usually apply. In commercial property, many times increased traffic will cause businesses to be more successful over time. The inverse is true as well, with businesses that are forced to shut down causing damage to the potential of the stores that are left.

Many times, to assist with the finances of these stores, landlords will lessen the rent of the co-tenants. It is all up to the landlord and the documents that the businesses signed when they first decided to become situated in that location.

Complicating matters more is the fact that PPP Assistance may give a business the appearance of operating at a standard level when foot traffic is drastically lowered because of rising positive COVID-19 tests.  

With a lack of pandemic provisions written into leases, landlords and tenants are having to get creative with the options that they are afforded. Co-tenancy has often been used to help businesses that are suffering due to the lack of success from an adjacent commercial listing.

However, what happens when an external factor is causing many of the businesses to suffer? It may just be that a battle is looming on the horizon between landlords and tenants, and every month we get a little bit closer to that battle becoming our reality.  

What Options do Landlords Have? 

Although landlords are in a predicament when it comes to shouldering tenants that are not paying rent, there are many points to take into consideration before filing for eviction.

For the high-end shopping centers, they may have the footing to stand on, mainly because filling the empty location will not be as difficult. For areas with less foot-traffic, landlords may be encouraged to work with their tenants.  

Depending on the language found in the contracts signed between the owner and the occupant, some owners have been able to offer concessions to assist their tenants during this time; however, many are not going to be able to make such offerings.

Some have speculated that eventually, owners may turn to lenders to try and gain permission to offer concessions. The fact remains that all three parties are in a mode of cautious speculation over what options they may have to maintain some semblance of the bottom line when it comes to their businesses.

Although insurance does not usually cover pandemics, that could change down the line. Lenders are looking at options that involve insurance that would help landlords and, in turn, help their tenants through difficulties that are out of their control, such as a pandemic.  

An important factor is assistance afforded by the PPP loans from the Cares Act. Even with an extension and another assistance check, the potential ending point could be early August when the program is set to expire.

We could be looking at many agreements being modified and tensions rising between landlords and their tenants as that time approaches. Once the PPP loans expire, we will be seeing an entirely different operating pattern for landlords and the businesses they rent to. That dreaded conflict could create many vacancies and fluctuations in the commercial market. We must be ready.   

A Wave of Litigation on The Horizon  

We believe that, although you can stave off conflict, many times it is only buying time that will eventually run out. With difficulties being placed on both sides, we certainly predict a wave of litigation concerning these issues.

Our recommendation is to cross these bridges before they are at your feet. One of the best practices you can have with the businesses you work with is to have open lines of communication. Of course, when relationships become too contentious to resolve certain complications, it becomes necessary to have a legal professional help.  

Being situated where we are, The Orlando Law Group is keeping our focus on what we can do to help commercial businesses and their landlords through this difficult time. It could be the simple act of looking at your documents to have a deeper understanding of the potential you will have when facing mounting litigation. 

When there is no easy answer, the law is there for us to rely upon, and we are remaining cautiously hopeful for the future. Businesses will have to adapt as well as their landlords, and as we go through this change, we will find new ways to protect the financial future of our endeavors.   

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unbreakable lease

Unbreakable Lease: Orlando Student Files Lawsuit for Refund

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With what has been going on in our world lately, our daily lives have been interrupted in ways we cannot underestimate. One industry that has been affected is college living. With colleges moving towards virtual learning to stay healthy and cautious, students have been forced to leave their dorms and suddenly break their agreements.

Trapped in an Unbreakable Lease

Imagine being trapped in a rental agreement that you could not break with the stress of a semester upended. That is the reality that many students face, and they are beginning to file lawsuits to fight back.  

Right down the street from The Orlando Law Group Waterford Lakes office near the University of Central Florida, a class action suit has been filed against a Georgia-based, off-campus apartment operator. Incongruent to what the University has accomplished (they refunded housing money for university-run dormitories), Preferred Apartment Communities Inc. had failed to refund rent paid by students who returned home when campuses closed the middle of March.

Those students are paying monthly rent for a location they are not living in, and for those who have lived near campus, they will attest to the fact that those payments are not low.  

They are not alone

In Colorado, students are suing their University for fees that cover services they are no longer receiving due to the pandemic, which has paused on many parts of the campus.

Many of these dues account for the student recreation center, transportation, sports events, and the performing arts center. A local attorney representing the students highlighted the fact that colleges should be held to the standard of any other business. If students are not receiving services, they should not be paying for them.  

For the suit that is being filed in Orlando, the client’s mother pays $810 for her daughter’s room at The Retreat. The complex is closely tied to the University and has a technology center, sports facility, a sauna, club room with pool tables, and a coffee bar.

This is highly relevant, as Preferred Apartment Communities stated in a letter that all fitness centers and inside amenity spaces would be shut down. They would only open if emergency repairs needed to be made. Later that month, on March 26th, the housing complex released a statement saying that though they were sympathetic to the hardships brought about by the pandemic, lease agreements would not be altered. They then proceeded to collect rent for March, April, May, and June.  

Making a difficult time worse

The Lawyer who represents the student stressed for students and families; the defendant is making a difficult time worse by prioritizing profits over protecting its reputation as a company that cares for its clients. When a tenant breaks a lease, it will hurt their bottom line, but how long can students maintain paying for a space they are not currently living in? 

It is unclear how many students have had to return home, but one can assume that this is not an issue within a vacuum. Campuses and the apartment complexes that surround them have begun to encounter these complications. Although there are procedures to prevent eviction, there are not many rules in place for early lease termination as a direct result of the pandemic.  

Of course, like most controversial issues, there are always two perspectives. A lease is a legally binding contract. Although a moratorium has been placed on evictions (note that the moratorium only staves off the eviction process and does not prevent it), it does not exclude someone from the obligations placed upon them because of their lease.  

Colleges can only provide limited help

Although colleges cannot stand between an off-campus apartment complex and the students who live there, they are trying to help by providing tips for anyone struggling. Indiana University gave its students advice on what to do if you must leave your rental unit early because of the COVID-19 virus.

They highly recommend having all communications done in writing and fully communicating to your landlord your situation. If your landlord agrees to lease termination, be sure that you get it in writing. Specific actions such as cleaning the unit before you leave, removing belongings entirely, and arranging to turn in your keys can help lessen the potential payment you have to make when breaking your lease. Still, unfortunately, such actions might make zero difference in the long run.  

Consequences of an Unbreakable Lease

The consequences of breaking your lease could be vast and progressive. Lawyers speculate that once the eviction ban expires, landlords will sue to gain possession of their apartments and seek payment for rent that was unpaid. If you are sued, it could damage your credit, making it harder to own or rent a property in the future.

Landlords can be skeptical of who they decide to rent to, and if they see public records reflecting nonpayment for rent, this could be a dealbreaker. If they choose to work with a collection agency, this could damage your credit score. It is truly a complex issue with many angles to consider.  

What can we learn from this situation? Legally speaking, contracts are like tools, each has a use, and each has restrictions and limitations as to how it can be used. We highly recommend starting any complex analysis by taking a deep dive into the language found in the documents that were signed. Sit down with a lawyer (preferably one of ours), to discover how the language in those contracts affects your situation.

Wrapping up

When a complex issue arises, both parties feel they are in the right, and both parties stand to lose value they feel entitled to. For the companies that rent to students, they are apprehensive of the mass exodus that would occur if they allowed their tenants to terminate their leases. For the students, paying rent for apartments they do not inhabit is a luxury they cannot afford, but it may be one they inevitably have to pay.  

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extensions to the cares act

How Extensions in the CARES Act can Help Hurting Homeowners

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COVID-19 has changed our lives as well as our livelihoods. Income sources have taken a massive hit, and with that, rules are having to change, deadlines are having to be extended, and significant changes are being implemented to help families survive during this stressful time.

Although a phased approach is being taken to open the economy back up, it will be a long road back to normalcy and the financial status many maintained before the coronavirus pandemic. 

Specific extensions in the CARES Act are designed to help. 

The article below details some points about the CARES Act that are important for homeowners.  

Section 4022 – Moratorium on Residential Foreclosures 

On March 27, 2020, Congress enacted the Coronavirus Aid, Relief and Economic Security Act of 2020, also known as The CARES Act, which provides for financial relief due to the COVID-19 Virus Pandemic. This Act is put into place to do precisely what the name implies. The CARES Act provides care for this who are struggling because of the stress of a halted economy. 

Section 4022 focuses on homeowners and provides a moratorium on residential foreclosures for borrowers with federally backed 1-4 family mortgage loans. It addresses the right of a homeowner to request forbearance from payment on these loans.  

Understanding the Requirements – Extensions in the CARES Act Regarding the Foreclosure Process 

The requirements only apply to federally backed mortgages, which are loans insured or guaranteed by FHA, VA, USDA, or loans that are owned or securitized by Fannie Mae or Freddie Mac. The moratorium does not apply to vacant or abandoned property or private bank loans. Under the Act, no mortgage servicer of any federally backed 1-4 family mortgage loan is permitted to do the following beginning March 18, 2020, and ending May 17, 2020; and now further extended until June 30, 2020: 

  1. Initiate any judicial or non-judicial foreclosure process; 
  2. File a motion for foreclosure judgment or order of sale; or 
  3. Execute a foreclosure-related eviction or foreclosure sale. 

Related: View our COVID-19 Legal Information and Recommendations

Utilizing the Extensions – Requesting a Forbearance 

Section 4022 also allows a borrower on a federally backed 1-4 family mortgage loan to request forbearance from payment up to 180 days with the right to request an additional 180-day extension. Section 4023 allows a borrower on certain federally backed multi-family mortgages to request forbearance for up to 30 days with two 30-day extensions. During the term of forbearance, a tenant cannot be evicted or charged late fees. Section 4024 establishes a temporary moratorium on eviction filings for particular single and multi-family housing. During the above referenced period beginning on March 27, 2020, a lessor cannot initiate an eviction for nonpayment of rent. After the moratorium period, the landlord may not evict a tenant unless a 30-day notice is provided to the tenant. 

Governor DeSantis also issued Executive Orders 20-94 and 20-121, consistent with the CARES Act, extending the foreclosure moratorium to all foreclosures and tolling residential evictions until June 2, 2020, but did not waive the obligation to make scheduled payments. Many Florida judicial circuits have also entered administrative orders which limit or prohibit foreclosure and eviction actions. These are meant to stave off the process and help families who are struggling to make ends meet.  

What About Title Derived Through Foreclosure? 

As a result of the federal and state law foreclosure moratoriums, until further notice, you are required to obtain approval from Underwriting to insure the title or issue a policy based on a foreclosure action where the certificate of title or writ of possession was issued after March 18, 2020, but before the expiration of the CARES Act and Executive Orders 20-94 and 20-121, now on June 30, 2020.  

Additionally, title to any property derived through a foreclosure initiated during the effective period of the CARES Act and/or Executive Orders 20-94 and 20-121, will not be insurable. 

As deadlines get pushed, and laws get stretched to allow for more financial breathing-room, it is essential to keep in mind how these rules apply to your specific situation. We have many questions that come into our office, and we are always honored to take the time and help someone gain clarity. Sometimes, legal rulesets can become cumbersome. That is why our lawyers are professionals at translating the legal jargon into a crystal-clear understanding of the law.  

We are here to help you understand how these rules can apply to you. If you have questions, do not hesitate to reach out to us. We can, and we will help you through it. 

Critical Advice: Selling Your Home During COVID-19

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Sell Your House during COVID-19

Critical Advice: Selling Your Home During COVID-19 from Real Estate Pros

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You’ve decided to sell your house, but the market lost its influx of buyers due to fear induced by the coronavirus. There are many things we cannot plan for when it comes to being in the mind of the buyer, but if we hit specific standards during the sales process, it may not matter. 

There are indeed ways to conduct Real Estate on a high level during chaotic times. You must be patient and cunning, two traits that often feel mutually exclusive. Perhaps circumstances out of your hands have prompted the sale, and you cannot simply take the house off the market. 

There comes a time in business when we each are forced to commit to our decisions, despite external circumstances. That’s when we get very good at what we do.  

This article is dedicated to hints that will help you navigate a complicated market. It doesn’t take a pandemic to have sellers face hardship. Complications could arise for any reason, and so many times, sellers must come back to reality and restructure their goals. During the Great Recession, many people faced difficulties getting their property situated correctly in the market. For many, it took months before getting offers and weeks after that to get an executed contract. It can be a stressful process, especially with a family facing uncertainty. It’s all about having your rules that work and having a scientific, learning-based approach. These five tips can be used to your advantage and help you through the trials and tribulations. 

  1. Make Sure That the Price is Right – This is both a reference to the classic TV Show, but also a recommendation to set your sales price competitively. You need to price the home at a place where you get attention in a drifting market. If you price too high, it will be like you never even put the house on the market at all, and you won’t get the attention you need to sell faster. Always consult real, sold comparable properties. Do not just go off what else is listed because there are no rules that keep someone from putting their home on the market with a price that’s too high. Be the one that prices your home right, and you’ll be the next in line for a serious offer.  
  2. Become a Perfectionist – This may sound a bit excessive, but you will have potential buyers that are just as excessive with their attention to detail. In a strenuous market, every single point of interest has significance, and it is worth your time to compare your property visually to all the competition out there. Being competitive always comes down to the details, and we encourage you to do everything in your power to compete. If it’s something that wouldn’t make or break a sale for you, that doesn’t mean your buyers won’t care about it. Everyone has different priorities when it comes to the purchases they make, and many times conducting business on a high level is about being able to think outside of our perspective.  
  3. Tour Your Own Home – Take a drive outside, and once you’ve gotten into the mindset of a potential buyer, take a walkthrough of your abode. Be critical of the details. If the door gets stuck, it may not have bothered you after years of living there, but it’ll stand out as a rough first impression. Speaking of, pay close attention to the front of the house. First impressions are everything, and giving a little bit of T.L.C. to the landscaping can add so much curb appeal. Take a weekend and see what you can add that doesn’t break the bank. A clean, minimalistic approach will be the best for having buyers envision their designs and potential plans.  
  4. Have a Solid Copilot, but Never Fly Blind – Hiring an excellent Real Estate agent that is going to offer incredible advice can be your most significant advantage in the market. One of your biggest disadvantages could be just letting them handle it and clocking out of the details of the sale. You want to keep a close eye on the week-to-week movement your property undergoes on the market. Many times, clients hire a Real Estate agent based on the feeling they get when talking to them. This can lead to a tendency to lean away from the hard questions. We want you to lean into those discussions. Your agent is there to help you navigate tough waters, and they should always be okay with discussing options, opinions, and points of view that differ with their own.  
  5. Waiting For More Money Could Mean More Hardship – Ironically, we always consider money to be more valuable than time, even when it costs us money. Deciding to walk away from a sale because you feel like you deserve $5,000 could cost you a serious buyer. In a market where the next potential buyer could be weeks away from walking into your home, you’ll spend that much money searching for another serious offer. Don’t always let numbers stop a good meeting of the minds and keep challenging yourself to think from the buyer’s point of view. It could mean taking a serious offer despite it not being up to your asking price. The highest offer isn’t always the best, and although that sounds counteractive, time is always an easily forgotten factor. The best offer is the one that can close, and that saves you time, energy, and money spent in the future.  

These are five tips to always keep in consideration when conducting Real Estate, but they are especially important to remember when the market shifts. The housing market is still affected by external forces, and COVID-19 is no different. These are ways you can keep a certain level of control over your circumstances. We are here always to help you and have myriad of incredible business professionals to recommend, including Realtors! Keep your head held high, your faith filled full, and your goals gradually going. You’ll get to where you need to be in time.  

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Real Estate Law Orlando

Real Estate Changes and Updates Due to COVID-19

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Our New Normal

When a new normal forces industry to adopt new ways of doing certain actions, we employ technology. Ideally, there would be flowers and gifts at the closing table and opportunities for celebration between the agents and their clients; however, these are different times. These are the days of the Coronavirus Pandemic. Drive Up Closings are being employed to help with social distancing, and yet that doesn’t stop great agents from sitting in their car nearby to offer any advice and assistance necessary. The agents make sure to stay the standard six feet away, but their presence is welcomed, even if it’s just to show support for their clients. 

Glass Half Full

The good news is that buyers and sellers can still close transactions. Real Estate hasn’t stopped, and transactions shouldn’t be held up due to the need for social distancing. Real Estate closings tell the same tale being told throughout every single industry: “How do we accomplish our tasks in new ways that help us remain remote?”

Unfortunately some counties locally have closed their recording office or other offices which deal with re-zoning and other related real estate issues which have impacted our ability to close on a case by case basis.  Probate courts have mostly remained open for short, phone hearings which have allowed us to move forward for hearings to free up the sale and closing of homestead and other properties impacted by probates.  Family law has mostly slowed to a stop, but in the next week should start again with video hearings which should help properties tied up in a divorce to get moving again.  The key is to be very proactive if your transaction is challenging in any way.

As we push to help properties to close, at home closings are taking place, and if clients come into the office measures are being taken to insure sanitization, social distancing and the least contact possible.. Anyone deemed non-essential to the process is being asked to video conference into the meeting if they want to be involved. One of the ways in which we can do our best to cope with change is by being flexible. There are many documents that can be signed electronically, but lenders do require some to be signed in person.  This may change in the future, given the fact that signing electronically could potentially mitigate having to meet, but the liability could be too much to shoulder. For the time being, we will work hard to do the most remotely that each industry can, while also maintaining the due diligence of the task itself. We have done our best to start using On Line notary, but a few clients have had challenges with the software, so we need to not wait until the final hour to get documents signed.  Again being proactive is key.  

Future Forecast

It is incredible to see industries doing all that they can to stay open while also maintaining guidelines that will help flatten the curve. Our prediction is that many places will similarly begin to start using remote and drive-up services. Although some work must take place in person, it doesn’t mean that you absolutely must be closer than six feet from other parties.

Will things ever go back to normal? We are of the mindset that business will slowly begin to get back to standard operating procedures, but it may take some time. We want to put everyone’s health as a top priority and adapt as much of our normal practices that we can to help better the comfort and confidence of our clients. Every industry will have to change.

We Are Here to Help

With everything going through a period of change, it’s important to remember that we are all here to help you. Even if it’s questions you have about how technology will affect your industry and how COVID-19 could play a role on the business that you work in, we’re happy to help you navigate those waters. We view ourselves as more than just lawyers for our clients. We’re resources for rules that can be made to work in your favor, and many times a conversation with us helps someone find comfort, confidence, and clarity. Once this is all over, we’ll find a significant emphasis on the shaking of hands, the closeness of friendship, and the ability to be together more often. For now, we must work hard to flatten the curve, adhere to social distancing guidelines, and stay as healthy as humanly possible.

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insurance

Title Insurance Truth or Dare…featuring RON

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Okay, it’s time for some truth serum. The Title Insurance Industry is a business that is continually evolving. Real Estate Agents must deal with title companies, and their clients get title insurance on every transaction they handle. While we socially distance ourselves due to the Coronavirus, it’s a perfect time to level up what we do and how we do it. There may be a thousand ways everyone else accomplishes a task, but the way you’re going to stand out and innovate is by finding that one way that no one thought about.

In this article, we will be diving into the truths that have prevailed within the business of Title Insurance. We will also look at how to be daring enough to use them to your advantage. 

If you work as a Real Estate Agent, in the field of Title Insurance, or are simply an entrepreneur looking to create some innovative tactics while you’re at home staying socially distant, you’ll find something useful. You will be challenged, and each of our truths is partnered with a dare for you to try out. Take a scientific approach and grow through experimentation. We will say this: to the daring always go the spoils. 

  1. Truth: Good Communication is Key – This might seem simple, but anyone who has worked in Title will understand that it’s those who communicate well that stay in the game. Communication is all about being thorough, and at the same time caring about who you’re working with. We dare you to get to know everyone involved, that way you can be completely aware of any situation that might arise. Having systems and processes in place to make sure you’re following procedures is just the beginning. Information is vital, and although text can be the easiest way to expedite responses, nothing beats a good conversation over the phone or in person. Right now, due to the Coronavirus, even avenues like Zoom are a better way for someone to see your face without having to be in the same room.
  2. Truth: Set Expectations and Have Checklists – So many individuals have to work from home right now because of COVID-19. Without checklists and working documents, that can be difficult. Working documents are real weapons in business. Checklists keep order to what can quickly become a chaotic process. We dare you to have templates on your computer of checklists, and we double dare you to print them off! There’s no better feeling than being able to check off a box and look at your checklist, knowing everything has been completed. Also, save some room for custom points you can add that the clients specifically want or need taken care of. Working documents are made to be worked on and evolved.
  3. Truth: Get to know RON – What is RON? Who is RON? Is he Harry Potter’s best friend? Yes, but not this RON. You are probably curious as to how notarization is going to work during the COVID-19, socially distant world we’re experiencing. RON or Remote Online Notarization is going to become your best friend in this scenario, and especially as we have to stay distant to flatten the curve of this virus. Taking advantage of technology can be arduous, but it’s always worth it eventually. We dare you to try new avenues of technology that make your job that much easier. Work with a title company that is taking advantage of RON (we are)!
  4. Truth: Create Your Special Recipe – This is something that requires a little bit of creative work. Create something unique that only you do as a Realtor, Title Agent, or business entrepreneur. This could be a gift that you present at the end; it could be a program where you follow up after the closing has taken place, or it could be a special place you take everyone for lunch once the victory has been achieved. Even if you can’t take them to lunch because of COVID-19, perhaps a Zoom happy hour where you can speak about the future and celebrate the transaction completed will be perfect. The point is to make them feel like this particular action is unique to your business (hopefully it is). We dare you to make it as personal as possible. It’ll help you stand out, as well as build strong ties with those that you do business with.

We work with a vast array of agents, and just like Real Estate and Law, The Title Insurance Industry is dependent upon the Title worker. It’s all about the level that you want to achieve, and we want to encourage you always to have the mindset of leveling up what you do.  

Seek out your truths and the truths that others have discovered and dare yourself to try new things. Right now, everyone has to adopt new strategies and plan because of how the virus has changed our daily lives. We must remain hopeful. Innovate, recalibrate, and formulate processes that both take inspiration from your heroes and make you an inspiration for others. When it’s all said and done, add your flourish, and dare the world to do the same.

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residential-rental-agreement

Important Clauses For A Residential Rental Agreement

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A Landlord’s Perspective 

Almost all residential rental agreements are different, and each one should be gone through in detail before being presented to a renter. Rental agreements should not be made from an agreement template or boilerplate and should be tailored to fit the tenant at hand. 

We have gathered some information on a few typical clauses found in residential rental agreements that we believe are important to the contract. This is not an exhaustive list of provisions that we recommend in a residential rental agreement.   

Liability- Joint and Several  

As a landlord, you want your tenants to pay the rent and to be able to collect rent from all of your tenants on or before the due date. You do not want to find yourself in a position where one tenant has paid their portion of the rent while the other tenants have not, and then have to track down the remaining unpaid tenants.

A Joint and Several Liability Clause basically states that every tenant is jointly AND individually responsible for the entire monthly rent amount and any damages to the unit. 

This clause will help protect the landlord in a situation where a tenant is claiming that they have paid “their portion” of the rent, and they do not have to pay for the rest of the tenants’ rent.

If you explain this clause to the tenant, it may help influence which people they allow to move into the unit because they will want to live with roommates that they are certain will pay their share of the rent amount. 

Use of Premises 

In the terms and conditions of a residential rental agreement, you are allowed to restrict the number of people living in the rented unit. This clause will help prevent your rental unit from becoming the local party house, or from a family allowing other family members to move into the residence.

If your agreement to rent is based on a family of four (4), add this clause to state that the premises should be used and occupied by no more than four (4) people.

Every family is going to have a guest come to visit at some point, so you should add wording that allows a guest to remain in the house for a certain amount of time, such as a week, two weeks, or 30 days.

Your clause should state that if the guest remains after that time period, they need to be added as a renter under the agreement, and you can increase the rent amount to reflect the additional person in the unit.  

Prevailing Party Attorney’s Fees 

Reimbursement of Attorney’s fees is only available when they are included in a contract, or when they are provided for in a state statute. Residential rental agreements are covered by chapter 83 Florida Statutes, Part II. Florida Statute § 83.48 provides for attorney’s fees 

For rental agreements in Florida, this statute may cover you regardless of whether it is listed in the contract. 

However, it is still wise to list this in the contract for two reasons, (1) the tenant will be put on notice of the ability for the landlord to seek attorney’s fees (and vice versa); (2) there are certain situations such as a lease-option agreement that may turn what you consider to be a residential lease into a contract for sale.

The addition of the attorney’s fees clause in the contract may allow you to collect attorney’s fees in a situation where your “lease” is not governed by Chapter 83 Florida Statutes.  

Severability Clause 

This clause states that if one portion of the lease is ruled invalid in court, the rest of the lease is still legally binding. In some cases, the court will void a clause because it contradicts a state law or federal law. 

Without this clause, a judge might rule an entire lease void because of one unenforceable provision of the lease, even if the rest of the lease could have otherwise been saved.  

Access to Premises 

During the lease, situations may arise where the landlord needs access to the unit. Florida Statute §83.53 covers a landlord’s access to the premises. Landlords and tenants must adhere to but not limited to the criteria below:  

  • The tenant must be given notice of at least 12 hours prior to the entry 
  • Reasonable time for repairs is between the hours of 7:30 a.m. and 8:00 p.m. 
  • A tenant is not permitted to unreasonably withhold consent from the Landlord to enter the property to inspect the property, make necessary or agreed repairs, decorations, alterations, or improvements. 
  • The landlord may also enter the dwelling following:  
  • The explicit written consent of the tenant.  
  • In case of an emergency. 
  • If the tenant is absent from the premises for a period of time.  
  • The tenant cannot prevent a landlord from showing the property purchasers, contractors, or potential tenants if the landlord complies with the notice requirement. 

Although this statute provides the landlord with the ability to access the premises, it is wise to list this in the rental agreement because it puts the tenant on notice of this right. When the tenant refuses to allow access, you do not have to cite a statute that the tenant has never read.

This will give you the ability to cite directly to the standard lease and may be enough to convince the tenant to allow you on the premises.  

Use of Premises  

This clause dictates how the premises are to be used during the rental period. This clause is very broad and should be used to cover all areas of the property, such as swimming pools, decks, garages, sheds, backyards, etc.

This section of the lease may need to be tailored to fit the tenant(s) each time there is a switch. Children in the residence may require certain rules that an elderly person would not.

If the landlord does not wish to have any animals in the rental, this is the section that should state, “NO PETS ALLOWED.” Additionally, Commercial activity, such as a home business, can have many adverse effects on the rental agreement. 

In this clause, the landlord should identify whether they will allow any commercial activity to be conducted on the premises. 

Sublease(s) and Assignment(s) 

Subleasing and/or Assigning a lease is allowed unless it is expressly outlawed in the rental agreement. If it is not outlawed in the lease, then there is a very real possibility that this issue will arise (it may even arise if it is outlawed in the lease). 

Some landlords are fine with this because it creates the possibility of easily replacing a tenant, and some landlords even charge a fee for this. However, an assignment or a sublease can also create huge issues if the replacement tenant is not desirable.

This section of the lease should be used to clearly identify the rights (or lack thereof) to subleasing or assigning the agreement. 

Conclusion 

If you have a rental or are considering renting your property, you should have a residential rental agreement that adequately protects your interests. Do not download a boilerplate form from the internet and assume you are covered especially as the law does change.   

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