Call Today to get Scheduled! 407-512-4394

The Risks and Rewards of Home Equity Investments

, , , ,

Imagine being able to tap into the equity of your home without any payments or interest.

It sounds too good to be true, right?

In today’s financial marketplace, there are options for just about everything, and a growing new form of financing called home equity investments or home equity contracts does just that.

With these contracts, a company provides the homeowner a payout that is paid back in 10 or 30 years or if the home is sold. There are no payments before then. You aren’t charged interest. Instead, you are required to pay an amount dependent on the appreciation or depreciation of the value of your house.

Much like anything in the financial realm, there are pluses and minuses to HEIs, but as estate planners, we’re reluctant to see our clients commit significant sums of money that will need to be paid right when retirement starts or years after.

The attorneys at The Orlando Law Group can help look at all options of a home equity investment and help advise you on your short-term and long-term obligations, along with how it fits with your current estate planning.

How Does This Work?

The nuts and bolts of a home equity investment are relatively simple.

Let’s say the current value of a home is now $500,000, and the homeowner decides to tap into the equity of the home to pay for a new pool. After all, like Clark Griswald found out in Christmas Vacation, the days of a company bonus paying for a pool are over.

Refinancing the home can be troublesome, especially if the homeowner’s credit is not stellar. Interest rates are high, and the homeowner really can’t afford an increase in their mortgage. Likewise, a home equity line of credit includes a new monthly payment, and interest rates are even higher, putting those outside the limits of the homeowner.

Paying with the credit from the pool company? Hopefully, you noticed the extremely high interest rates before signing up.

So, a home equity investment might work for that homeowner.

There are a few companies – backed by venture capital – that offer these types of payments. Those companies pay the homeowner a percentage of your current value, say 10 percent of your home. On the $500,000 home, they would give the homeowner $50,000 for that new pool.

When the homeowner goes to sell their home, or when the term of the investment ends, the homeowner must pay back 20 percent of the value of the home at that time.

Keep in mind, it is virtually impossible to know what that number may be until it’s due!

What could the payouts be for a home equity contract?

 The basis for the payback is entirely dependent on what the real estate market does in that specific location. If the value of your home increases, your payment increases. If the value of your home goes down, your payment will decrease.

However, in Florida, it is very rare to see home values decrease for an extended period of time. In fact, the average home value in the Orlando area in 2020 was just $269,000, and today, it is nearly $400,000.

Over a 10-year period, if home values increase by 10 percent a year, the homeowner could be required to pay back more than $300,000 with a 10-year term.

With a 30-year term, you could be facing a payment of over $3 million.

Of course, the odds of an annual 10 percent increase are not likely. But just an average 3 percent increase over 30 years could result in a payment of more than $350,000 in exchange for $50,000.

Compare that to a home equity line of credit at today’s interest rates. While a homeowner could have a $411 monthly payment on $50,000, the total paid over 30 years would only amount to around $150,000.

A home equity investment can be a substantial amount, so it’s important to be wary when signing up for a home equity investment.

Are these tools legitimate?

Yes, these tools are legitimate, however, they were facing increased scrutiny from the Consumer Financial Protection Bureau under President Biden.

At issue was whether they should be treated like a consumer financing option, similar to a mortgage or a car loan, or should they be treated like a financial investment, like securities or stocks.

Remember, when a homeowner signs a mortgage, it seems the paperwork is endless, including forms about discrimination, truth in lending and much more.

Currently, none of that applies to home equity investments.

We’re watching a few cases that might help provide guidance on these types of tools.

The government under the prior administration had provided an argument to one case that home equity contracts were a form of financing and should be treated as such.

You can read about that on an archived page found here.

Since taking office, the Trump Administration has taken down all warnings about these financial instruments from the CFPB’s website and has had its briefs in cases dealing with these instruments removed as well.

What happens if a homeowner can’t pay

For many people, this won’t be an issue. It is very rare for a home to depreciate, and often, people downsize when they retire. When those people sell their homes, the payment is included in the sale price.

If that $500,000 home increases in value 10 percent every year, at the end of 30 years, the home’s value will be over $6 million. Selling the home will easily cover the payout and still leave the homeowner with millions of dollars.

If that homeowner plans on staying in the home, that means a $3 million payment would have to come from somewhere else, which could be very difficult for many people.

At that point, if the homeowner could not pay, they would be forced to sell the home or have a foreclosure filed against them.

Neither of those options is great for an individual starting retirement.

That is why anyone thinking about entering into a home equity investment needs to work with their estate planning team to determine all the implications for their future.

The attorneys at The Orlando Law Group have helped clients throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and Central Florida with their estate plans and can work with a team of advisors to ensure future finances are in place.

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

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

 

/by

New Rules on Residential Real Estate Start on August 17

, ,

One of the biggest changes to how people buy and sell their homes is taking effect this weekend. That’s when the National Association of REALTORS has told all of its members to start using the settlement terms in the federal court case accusing most real estate brokerages of violating the Sherman Anti-trust Act.

Multiple changes must be implemented by real estate brokers, almost all dealing with compensation and transparency in the compensation of brokers.

The biggest change is in how buyers are compensated, and it is something that anyone looking for a house needs to know.

If a home is closed after August 17, the buyer must pay their agent directly with out-of-pocket costs, eliminating how the buyer and the seller were paid during the closing of the home.

The Orlando Law Group has been following this issue since the beginning with detailed articles found here and here.

While having a personal agent work with you on finding your dream home can be very beneficial, with this ruling, utilizing the services of a proven residential real estate attorney can be a way to offset the costs of buying a home.

The attorneys at The Orlando Law Group understand this type of transaction as we are also licensed real estate agents. We work with local real estate agents and their teams on a wide range of services, including contracts and closings, but also with individuals who need assistance and are here for you.

What is changing?

The good news is that real estate brokers have had plenty of time to adjust. In May, the National Association of REALTORS announced the changes that needed to be made by brokers.

As reported by REALTOR magazine, here’s what needed to be changed:

  • Eliminate and prohibit any requirement of offers of compensation in the MLS between listing brokers or sellers to buyer brokers or other buyer representatives.
  • Retain and define “cooperation” for MLS participation.
  • Eliminate and prohibit MLS participants, subscribers and sellers from making any offers of compensation in the MLS to buyer brokers or other buyer representatives.
  • Require the MLS to eliminate all broker compensation fields and compensation information in the MLS.
  • Require the MLS to not create, facilitate or support any non-MLS mechanism (including by providing listing information to an internet aggregator’s website for such purpose) for participants, subscribers or sellers to make offers of compensation to buyer brokers or other buyer representatives.
  • Prohibit the use of MLS data or data feeds to directly or indirectly establish or maintain a platform of offers of compensation from multiple brokers or other buyer representatives. Such use must result with the MLS terminating the participant’s access to any MLS data and data feeds.
  • Reinforce that MLS participants and subscribers must not, and MLSs must not, enable the ability to filter out or restrict MLS listings that are communicated to customers or clients based on the existence or level of compensation offered to the cooperating broker or the name of a brokerage or agent.
  • Require compensation disclosures to sellers, as well as prospective sellers and buyers.
  • Require MLS participants working with a buyer to enter into a written agreement with the buyer prior to touring a property.

That is a significant number of changes, including the wording of contracts and marketing materials.

Buyer’s Agent Compensation at the Forefront

Historically, a buyer’s agent was compensated by the seller’s agent by splitting commissions between the buyer and the seller. On a $400,000 sale price, this could mean a commission for the seller’s and buyer’s agents of more than $10,000.

For most buyers, this seemed like a good arrangement. The money that was paid to the agent was taken out of the sale proceeds, so the buyer never truly saw any additional costs, other than what was in the sale price.

Now, the buyer will be on the hook for thousands of dollars in addition to the home price. Of course, the offer to buy a house could be lower, but The Orlando Law Group provides a different option.

What are a home buyer’s options now?

As we stated when the settlement was first made, the options seem to be limited now. With the new laws, buyers can:

  • Agree to pay the agent directly for a preset cost,
  • Negotiate with the seller to cover the buyer’s agent fee, similar to credits for closing costs,
  • Hire an experienced real estate attorney, or
  • Try to negotiate the purchase of real estate unrepresented.

We hope that no one tries to negotiate without representation. The process of buying a home should be trusted to a professional and an experienced real estate attorney may be your best bet.

No, a real estate attorney will not scour the internet looking for your perfect home. Most of the buyers we know are already doing that, looking at listing services for homes they like.

A real estate attorney can, however, negotiate the terms of your sale. They can help ensure you are covered for unforeseen circumstances in the sale contract. They can perform all the duties required at closing, that you will be paying for anyway.

The best part? The fees paid to an experienced real estate attorney, like those found at The Orlando Law Group, are a fraction of what would be paid to a real estate agent.

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

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

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

 

 

/by

Want to Convert to Condos? Better Check the New Laws

, ,

As the commercial real estate market continues to evolve after the pandemic, more and more building owners are looking to convert hotels, offices and other underperforming buildings into residential spaces.

Property owners are finding converting their underperforming property into a revenue stream, especially with the Biden administration pushing these types of conversions, offering billions in low-interest loans for developers to convert offices into residential units.

For some developers, looking at creating a mixed-use facility – instead of a full conversion – might be a creative way to convert an underutilized building.

For instance, an office skyrise may have floors of empty space in this commercial real estate market. However, the floors with office space are providing great revenue, so the property owner wants to keep some of the building as offices.

The owner wants to use some low-interest loans, so a few floors are apartments. Then, to create more revenue, the owner converts the top two floors to condominiums, selling them for a significant amount.

Starting October 1, a new law, HB 1021, covers converting a building into a mixed-use facility with condominiums with specific statutes property owners must follow when recording and selling the condominium units.

Property owners even considering condo conversions need to be prepared now.

The attorneys at The Orlando Law Group represent more than 100 communities and commercial real estate investors in Central Florida. If you live in Orlando, Winter Garden, Altamonte Springs, Kissimmee or anywhere throughout Central Florida, The Orlando Law Group is ready to help you.

What does a property owner have to disclose?  

The new law covers what a property owner must disclose when converting a building partially into a condominium. The law is fairly straightforward and the disclosures must be in the documentation filed with the official records of a building.

They include:

  • What parts of the building are included and not included in the condominium;
  • Who is responsible for maintaining and operating shared parts of the buildings, such as the roof, the windows, elevators, the lobby and more;
  • How much the property owner, tenants and condominium owners will contribute to the operations and maintenance of the shared facilities;
  • Who collects the shared costs of operations and maintenance; and
  • The rights and remedies that are available to enforce payment of the shared expenses.

While those are all to be filed with the local recording agency, the records must be open to inspection by any condominium owner.

Finally, the law ensures that the owner must submit an annual budget for those expenses to the association.

How to determine the costs associated with operations and maintenance

The legislature expanded on the third bullet point and outlined how much each entity – the association and the property owner – would pay to maintain the common areas.

The law is clear that the assessments are based on the following:

  • The area or volume of each portion of the building in relation to the total area or volume of the entire building, exclusive of the shared facilities.
  • The initial estimated market value of each portion of the building in comparison to the total initial estimated market value of the entire building.
  • The extent to which the unit owners are permitted to use various shared facilities.

There were two other parts of this law that applied to the amount each entity pays for operations and maintenance.

First, any owner who is not part of the condominium association, such as someone who owns a separate office condominium, must approve any increases to the expenses of common area operations.

Second, if all parties agree, there can be a unique or alternate method of assessing fees, but any alternate way of collection must be entered into the official documents of the building.

New contract language is required for conversions

While much of the law discussed the structure of the condominium conversion, the statutes now have very specific language in any contract the owner will have with a buyer.

Here’s what is required for any contract to have conspicuously written:

DISCLOSURE SUMMARY

The condominium in which your unit is located is created within a portion of a building or within a multiple parcel building. The common elements of the condominium consist only of the portions of the building submitted to the condominium form of ownership.

Buyer acknowledges all of the following:

(1) the condominium may have minimal common elements.

(2) portions of the building which are not included in the condominium are or will be governed by a separate recorded instrument. Such instrument contains important provisions and rights and is or will be available in public records.

(3) The party that controls the maintenance and operation of the portions of the building which are not included in the condominium determines the budget for the operation and maintenance of such portions. However, the association and unit owners are still responsible for their share of such expenses.

(4) The allocation between the unit owners and the owners of the portions of the building which are not included in the condominium of the costs to maintain and operate the building can be found in the declaration of condominium or other recorded instrument.

This new statute can be complicated for real estate owners looking to change the usage of their building and maybe consider condominiums as an option for their investment properties.

Just like any real estate transaction, it is important to work with an attorney to ensure compliance with this statute and to have the proper contracts for any sales to condominium owners.

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

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

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

 

 

/by

With Court Settlement, Look to an Attorney for Buyers Representation

Several months ago, we wrote about the potential impact of the lawsuit against the National Association of REALTORS. At that time, the federal court in Missouri ruled the organization and most real estate brokerages violated the Sherman Anti-trust Act.

At that time, we cautioned that a final ruling was still a long way from concluding with appeals and other court mechanisms.

However, as has been widely reported, the case was settled last week with national implications for the real estate industry. As attorneys, we’re looking to see the full settlement case to fully understand all the implications as a result.

We’re also cautioning our clients that the settlement has not been approved by the courts and still could change. That won’t take place until May.

But one thing seems clear, the way home buyers will utilize agents for representation will change as the costs of their services have shifted from the proceeds of the sale to the buyer themselves.

While having a personal agent work with you on finding your dream home can be very beneficial, with this ruling, utilizing the services of a proven residential real estate attorney can be a way to offset the costs of buying a home.

The attorneys at The Orlando Law Group understand this type of transaction as we are also licensed real estate agents. We work with local real estate agents and their teams on a wide range of services, including contracts and closings, but also with individuals who need assistance and are here for you.

A Recap: The Basics of the Class Action Suit

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

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

The main arguments from the plaintiffs included:

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

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

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

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

How is a buyer’s agent compensated?

Historically, a buyer’s agent was compensated by the seller’s agent by splitting commissions between the buyer and the seller. On a $400,000 sale price, this could mean a commission for the seller’s and buyer’s agents of more than $10,000.

For most buyers, this seemed like a good arrangement. The money that was paid to the agent was taken out of the sale proceeds, so the buyer never truly saw any additional costs, other than what was in the sale price.

However, this part of the settlement focused on one of the issues listed above.

Since the MLS requires the seller to list a commission percentage, this provides the buyer’s agents the opportunities to selectively show clients properties the agent deems to be” worth their time.” This places sellers who choose to pay less in commission in a disadvantageous position, as the buyer’s agent usually gives priority to showing homes that pay a higher commission, and selling brokers are incentivized to provide a higher buyer broker commission to comply with NAR’s mandatory rule.

Basically, the lawsuit alleged that buyers’ agents were motivated by higher commissions and not for the best interest of the buyer. That’s a severe allegation and the real estate agents we know and work with were always looking for their buyer’s best interests.

If the settlement is approved, however, the buyer will now be on the hook for thousands of dollars in addition to the home price. Of course, the offer to buy a house could be lower, but The Orlando Law Group provides a different option.

What are a home buyer’s options now?

For most buyers, the options seem to be limited now. We think buyers can:

  • Agree to pay the agent directly for a preset cost,
  • Negotiate with the seller to cover the buyer’s agent fee, similar to credits for closing costs,
  • Hire an experienced real estate attorney, or
  • Try to negotiate the purchase of real estate unrepresented.

We hope that no one tries to negotiate without representation. The process of buying a home should be trusted to a professional and an experienced real estate attorney may be your best bet.

No, a real estate attorney will not scour the internet looking for your perfect home. Most of the buyers we know are already doing that, looking at listing services for homes they like.

A real estate attorney can, however, negotiate the terms of your sale. They can help ensure you are covered for unforeseen circumstances in the sale contract. They can perform all the duties required at closing, that you will be paying for anyway.

The best part? The fees paid to an experienced real estate attorney, like those found at The Orlando Law Group, are a fraction of what would be paid to a real estate agent.

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

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

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

 

 

/by

Prepare for Any Possible Defense When Evicting Commercial Clients

A year ago, one of West Palm Beach’s most iconic restaurants closed after its landlord evicted the owners of the 80-year-old restaurant.

Of course, the owners of Ta-Boo did not walk away from the Lake Worth location quietly. For instance, the restaurant owner filed a motion to dismiss because the landlord had missed a deadline to file a response in the case.

While Ta-Boo was unsuccessful, it’s just indicative that business owners will do what they can to remain open if they see a future for their business.

There are many, many ways a commercial tenant can try and defend your desire to evict them and find a more financially stable tenant.

The attorneys at The Orlando Law Group can help you protect your investment in commercial real estate. We have seen many of the defenses tenants try to employ to stay in their property and will work to end the process as quickly as possible with your interests protected.

What is the most common way to defend an eviction?

In many cases, tenants will combat evictions using the legal process itself. For instance, Ta-Boo said the owner missed a deadline to file a response.

Florida statutes are clear on timelines for commercial eviction cases. A landlord must give three days’ notice for an eviction because of failure to pay rent. A landlord must give 15 days’ notice for an eviction because of another reason unless otherwise specified in the lease.

Upon receipt of the appropriate notice, the tenant has the opportunity to cure the default or otherwise to surrender the premises to the landlord. There are also other legal maneuvers to delay an eviction. For instance, the tenant may file a motion to determine rent to get the court to issue an opinion on the actual amount of rent owed.

It is critical the owner of a commercial property follow all the steps in the process, including any required notices.

While straightforward, the legal maneuvers used can stop an eviction process, which is why it is best to use an attorney experienced in commercial evictions to handle your case.

What else can be a defense in a commercial lease eviction?

There are many ways a tenant can defend a commercial lease, so it is important to document the reasons why a property owner plans to evict its tenant.

A popular defense in any eviction, including commercial evictions, is to blame the landlord for the problems. This can be a variety of things, including some that may not have been tried.

A few of the more popular ones are:

  • Renting to a competitor: Many leases have an “exclusive use” section, saying the landlord will not rent space in a center to a competing company.
  • Not providing basic maintenance: Any lease should have a description of what is included in the lease. If the landlord agrees to cover pest control and there is a rat infestation, it could be used as a defense. Even a landlord not mowing the grass could be a defense if landscaping is part of the lease agreement. It is important to note that the tenant is also required to provide statutory notice to the landlord if the landlord is failing to perform under the terms of the lease.
  • The eviction was retaliation for another action: If the tenant feels they are being evicted because they complained or just because the landlord doesn’t like them, it can be a defense.
  • The right to quiet enjoyment was breached: Any tenant expects to be able to operate their business without interruptions. So, if the landlord puts a dance studio next to an art gallery, causing the art to continually fall from the walls because of the vibrations created by music, the art gallery could use that as a defense.
  • Taking actions outside of the courts: Sometimes, landlords take actions against tenants, like changing the locks on the property and shutting off the utilities. Landlords, in most cases, cannot resort to “self-help.” Self-help may result in a dismissal of the eviction, and may even lead to damages in favor of the tenant and against the landlord.

The reality is there are many reasons an eviction can be blocked in the courts – even the slightest misstep can cost thousands of dollars. Even just one single typo.

A good example is this document from the Lawyers Committee for Civil Rights. While it pertains to California eviction laws, it’s important to see how many defenses could be used in an eviction case.

It contains four pages, consisting of nearly three dozen technicalities to use in eviction cases. Again, not all apply in Florida law, but many of them do.

How can you counter these defenses?

The best way to ensure the eviction of a tenant is resolved quickly and to your satisfaction is to take steps before you file.

Probably the most critical step is to document everything that happens along the way. Keep records of the tenant’s complaints and how you worked to resolve those complaints. Put in writing all demands you send for rent payments and keep track of any payments given.

Of course, you should understand the terms of the lease. There are often many specific clauses in the contract that can allow you to terminate the lease, but it also may have clauses protecting your tenant.

Plus, if you understand what is required of you as the landlord, you can properly document how you met those requirements. Keep records of when you set rat traps or fixed the air conditioning. Show how you notified the dance studio they needed to reduce the bass in their music to protect the art gallery.

The more you document the issues with the tenant, the smoother your eviction will be.

Finally, it is important you work with an attorney well-versed in commercial evictions to follow all the details and fine points associated with eviction law.

The attorneys at The Orlando Law Group can help commercial property owners with evictions and other tenant issues in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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

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

 

 

 

/by

The Terms of the Lease are Essential in Commercial Evictions

There is an interesting case of a commercial eviction brewing in South Florida that showcases how important it is to clearly understand the provisions in your lease.

In November, a family-owned bakery sued its landlord, a national company that purchased the property recently, claiming its landlord had fraudulently evicted the company and effectively shut down the business.

It comes from the developer’s desire to renovate the property. In this case, the landlord had an engineering report performed on the property and the report came back that the building was unsafe for occupation.

This triggered the eviction.

In the case, found here, the landlord specifically pointed to two clauses in the lease as justification of the eviction.

Those clauses were:

  • Use of Premises: Tenants shall only use the Premises for the Permitted Uses. Tenants will not use or permit the use of the Premises or any part thereof for any other purpose or for any unlawful purpose and will not do or permit any act or thing which would materially impair the value or usefulness of the Premises or any part thereof, or which would constitute a public or private nuisance or waster or which would be a nuisance or annoyance or damage to Landlord or Landlord’s other tenants, or which would invalidate any policies of insurance or increase the premiums thereof, now or hereafter written on the building and/or Premises. Tenant represents to Landlord that the Permitted Uses conforms with the Applicable Zoning, and Tenant’s obligation to pay Rent under this Lease is not contingent upon the Permitted Use conforming to the Applicable Zoning or other laws, regulations or ordinances governing the use of the Premises. Tenant shall maintain at its sole cost and expense any and all licenses, permits and approvals by all authorities having jurisdiction over the operation of Tenant’s business at the Premises.
  • Tenants Obligations. Tenant shall, at its expense, throughout the term of this Lease, take good care of the Premises, the fixtures and appurtenances therein and Tenant’s Property. Landlord acknowledges that at the time of Tenant’s taking possession of the premises, there exists certain cracking in slab under and around the non-operating freezer. Landlord agrees to hold Tenant harmless from any and all damages related to this condition absent personal injury to the Tenant or their employees, agents or assigns, caused either directly or indirectly by the cracked slab described herein. Accordingly, the Tenant will take every reasonable measure including the posting of signage to prevent any further damage to both person and property.

It’s interesting that neither of those clauses specifically mentions how the landlord has the right to evict if the building is determined to be unsafe. As it’s not clearly stated, the tenant of the space may have a defense against the landlord.

And the bakery is using another section of the lease as its defense, claiming that if the building is unsafe for occupation, it is the landlord who broke the lease.

  • Landlord’s Obligations. Landlord agrees to repair and maintain the property, to maintain said property in good order and condition, including painting the exterior of the building on an as needed basis to be determined by Landlord. Specifically, the landlord will maintain the roof, including the awning, in good order and condition and repair said leaks in the building.

As you can see with these specific clauses in the lease contract, when it comes to commercial leases, the wording of the lease is extremely important.

The attorneys at The Orlando Law Group can help you protect your investment in commercial real estate. Our firm clearly understands how your lease should be written to allow for any capacity.

The lease is key to everything

This case in South Florida is unique with a lot of different angles for the bakery to use in a lawsuit.

While much of the dispute is over lease terms, the bakery is claiming the engineering report declaring the building uninhabitable was flawed and paid for a different engineering report with different results.

But, getting into the lease terms being important, one of the key parts of the bakery’s case is the lease expressly says the tenants would have right of first refusal on any sale of the property the bakery was operating out of.

Specifically, the lawsuit cites this clause:

  • Right of First Refusal. Tenant acknowledges and understands that Landlord may list the Premises for sale at any time, including during the duration of the Lease Term. During the Lease Term, Tenant has the right to match any purchase offers submitted to and accepted by Landlord from a third party. Landlord shall notify all prospective purchasers of Tenant’s right of first refusal. Landlord’s acceptance of any purchase offers submitted by a third party shall be subject to Tenant’s right of first refusal. Within three (3) business days of Landlord’s receipt of a purchase offer which Landlord intends to accept, Landlord shall notify Tenant in writing of the price and terms of the purchase offer. Tenant shall have five (5) business days from the date of receipt of Landlord’s, notice to submit to Landlord a written purchase offer which matches the price and terms of the third party offer. If Landlord timely receives a written purchase offer from Tenant which matches the price and terms of the third party offer, Landlord shall proceed with the sale of the Premises to Tenant. However, should Landlord not timely receive a written purchase offer from Tenant which matches the price and terms of the third party offer, Landlord shall be free to sell the property to the third party at the same price and terms only.

According to the suit, the company that owned the building when the bakery signed the lease did not give the right of first refusal on only its property, rather giving the right of first refusal on a larger deal that included other properties.

While the lease did not have a specific clause saying what happened if the building was uninhabitable, it did have specific instructions on what happens in the event of a sale.

It will be up to the courts to determine whether the lease was followed, but if that clause was not followed, there could be significant issues for the landlord.

What can be put into a commercial lease?

As a lease is a contract between two private parties, anything could be negotiated into a lease. However, most leases are very similar and include clauses that cover the following and more:

  • Lease payments
  • Maintenance
  • Insurance
  • Use of the property
  • Utilities
  • Quiet enjoyment

In one case The Orlando Law Group worked with a landlord whose Tenant failed to report the presence of mold in a rented space. The tenant’s inaction violated the lease terms and induced further mold growth.  Since this was in breach of the lease terms specifically dealing with mold, the judge quickly ruled in favor of our clients and restored possession to the Landlord.

Best to ensure your leases have the right covenants

While you hope you never have to evict a tenant, it is prudent to write your lease agreements to cover most issues that can be brought up if the relationship must end.

There are a lot of issues in the bakery case with a lease that may not have been as specific as was needed. While it’s impossible to see the future on every issue that might come up, working with attorneys at The Orlando Law Group can help you be prepared.

The attorneys at The Orlando Law Group can help commercial property owners with evictions and other tenant issues in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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

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

 

 

/by

Work to Get a Personal Guarantee When Leasing Commercial Space

Late last year, Boston Market suddenly closed more than 300 locations across the country, including several in Central Florida. Today, there are “for lease” signs in front of many of their still vacant locations.

For the owners of the buildings, this can be very difficult as many of the sites are owned by investors and family trusts. In today’s marketplace, finding new tenants for commercial space designed and built for a specific client can be very difficult.

And recouping lost rent will be extremely difficult. After all, the company owes $2.7 million in back pay in New Jersey. It owes another $300,000 in back pay and taxes in Colorado. U.S. Foods claims it is owed $11 million by the company.

According to Bisnow, there have been more than 140 lawsuits filed against Boston Market since 2020!

While there may be little recourse for the owners of those properties (as you can’t be paid if the company is broke), the empty spaces are a reminder that as a landlord, you can ask for a personal guarantee when leasing your commercial space.

The personal guarantee helps protect your investment in case your tenant shutters or stops paying rent, but it has to be written right.

The attorneys at The Orlando Law Group can help you protect your investment as the commercial real estate market changes and more businesses decide to leave commercial spaces – or close altogether.

What is a Personal Guarantee and why do you want one?

When a lease is signed by individual people, a personal guarantee may not be needed. The most common usage of a personal guarantee can be found when the tenant is an entity.

A personal guarantee is signed by the owners, members, managers, directors or other individuals who make up the Tenant entity. In the event that an entity fails, closes, or otherwise goes bankrupt, the personal guarantee serves to allow the Landlord to seek damages against the members of that entity in their individual capacity.

Signing a lease with many smaller businesses, particularly ones without a track record of financial success, can be a risky investment because an entity is only worth the assets that the entity has. If there are no assets, there is nothing for the landlord to pursue to rectify their damages.

The small business often insulates the company signing the lease. For instance, most locations of a restaurant chain are separate limited liability companies. With this structure, a business can protect assets in other locations or companies if any individual location is shuttered.

For the landlord, this can be very difficult to recoup expenses, especially if the tenant has built a custom space that does not conform to the requirements needed for replacement tenants.

Frankly, most owners of commercial property would love a lease from a company like Boston Market. After all, the company was a subsidiary of McDonalds for two decades. It had a long track record of success.

But for many leases, a personal guarantee is important to protect your income.

In many cases, the best way to protect an investment is through a personal guarantee.

How does a personal guarantee work?

A personal guarantee allows the owner of a commercial property to find compensation through assets outside of the company’s assets.

By signing a personal guarantee, the tenant is putting most of their assets up as collateral for signing a lease. This includes a wide range of assets, although in Florida the personal homestead cannot be used to recover losses.

In the personal guarantee, it is recommended to outline what is specifically going to be used for collateral. In addition, many businesses have partners and it’s important to ensure all partners on a business are part of the personal guarantee.

Of course, the business owner can refuse to sign a personal guarantee as part of the leasing process, but that may be a red flag for the business, where an owner does not want to risk his or her personal property – but will allow you to risk your investment.

What is in a personal guarantee?

A personal guarantee can be structured in a variety of ways, terms and with other conditions.

For instance, we recommend personal guarantees to last the term of the lease in many instances but understand this can be a negotiating point in the contract. We will help you review all financial statements to determine if there could be an end date with successful lease payments – like two years.

We also recommend a personal guarantee is written to cover any loss of income, including all back rent and other money owed. However, personal guarantees can have a cap on the amount paid from personal assets.

As with any contract, the terms of the personal guarantee will depend on the specific details of your situation and nearly all parts of the personal guarantee can be negotiated.

That’s why it is essential to work with the attorneys at The Orlando Law Group to ensure your investment is protected.

Can a personal guarantee be broken?

There are many ways to end a personal guarantee if both you and your tenant agree. The space could be subleased to another tenant. The tenant could have personal guarantee insurance.

It is very common for a tenant to ask to review or end a personal guarantee early, a decision that should be made after significant due diligence, just like when the personal guarantee was first established.

Of course, if the business owner files for bankruptcy protection, the personal guarantee becomes another debt to be considered by the courts.

The entire process can be very complicated, and it is essential you work with an attorney to protect your assets as much as possible.

Alternatives to a Personal Guarantee

As previously stated, a personal guarantee is a point of negotiation and is not required for a lease. and maybe disputed by the tenant. A few possible workarounds could be:

  1. Financial statements from the proposed tenants showing income generated sufficient to pay for the rent;
  2. An increased security deposit to buffer some time if an eviction is necessary. If you choose to go this route, it is very important to make sure that the lease does not limit your ability to assess damages against the security deposit.

The attorneys at The Orlando Law Group can help commercial property owners with evictions and other tenant issues in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

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

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

 

 

/by
Need A Real Estate Attorney

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

, ,

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

The punishment? Damages of $1.79 billion.

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

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

The Basics of the Class Action Suit

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

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

The main arguments from the plaintiffs included:

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

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

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

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

What is the Sherman Anti-trust Act

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

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

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

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

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

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

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

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

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

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

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

 

 

/by

What is the Purpose of the Letter of Intent

,

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

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

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

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

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

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

What is the Letter of Intent

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

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

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

Why sign a letter of intent?

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

But it can be helpful.

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

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

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

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

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

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

Is the Letter of Intent Binding?

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

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

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

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

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

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

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

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

/by

Government Approval for My Commercial Property

, , ,

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

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

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

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

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

Check the zoning!

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

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

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

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

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

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

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

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

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

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

How long does permitting take?

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

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

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

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

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

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

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

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

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

Inspections: the last step.

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

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

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

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

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

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

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

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

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

 

/by

Dirty land: a great deal or a big hassle

, , ,

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

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

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

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

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

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

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

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

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

What type of contamination could be there?

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

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

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

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

Hire an engineer.

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

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

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

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

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

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

Hire a lawyer.

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

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

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

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

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

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

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

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

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

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

 

/by

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

, , ,

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

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

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

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

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

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

What are the different types of leases?

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

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

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

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

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

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

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

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

What are other varieties of leases?

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

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

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

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

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

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

What type of lease is best?

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

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

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

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

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

 

/by

Can a Tenant Delay The Eviction Process?

, ,

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

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

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

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

If there is a way to delay the eviction action, the Tenant is going to try to do so. As a landlord, make sure that your lease is strong, and that you have conducted yourself in accordance with Florida Statutes. If the Tenant poses a defense, address it during the eviction but do not wait to file your action until you are financially strapped. The attorneys at The Orlando Law Group represent property owners, prospective property owners, developers, contractors, lenders, investors, real estate agents, brokers, landlords, tenants and more throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida. If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

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

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

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

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

The attorneys at The Orlando Law Group represent property owners, prospective property owners, developers, contractors, lenders, investors, real estate agents, brokers, landlords, tenants and more throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida. If you are dealing with a real estate issue or looking for some preventative real estate legal services, please reach out to our office at 407-512-4394, fill out our online contact form. If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

Call Now
/by

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

, ,

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

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

Commercial Real Estate

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

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

What Does a Commercial Real Estate Lawyer Do?

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

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

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

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

Our Commercial Real Estate Services Include:

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

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

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

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

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

Why Hire a Florida Real Estate Attorney?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

/by

Why You Need a Real Estate Lawyer

, ,

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

Why Hire a Florida Real Estate Attorney?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

/by

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

, ,

When you are purchasing a new home, piece of land or commercial property in Florida, it’s a good idea as a real estate buyer to have a lawyer helping you. Your goal as a homebuyer is to get what you paid for. Real estate can be highly complex, especially when dealing with a commercial property, and a good real estate attorney can be an invaluable asset in ensuring that your real estate transaction is an overall success. Your real estate lawyer will help prepare and negotiate a purchase agreement, help you through the buyer’s due diligence inspection period, and then review deed, title insurance commitment and other closing documents your behalf, to ensure that everything that is being done throughout the transaction is in your best interest. What Is the Due Diligence Inspection Period in Real Estate? The due diligence period in a real estate contract is defined as a buyer’s obligation to thoroughly investigate a property within a specified time to determine whether the buyer remains satisfied with the property before finalizing the purchase. In real estate, due diligence includes reviewing documents and contracts, thoroughly inspecting the property, and evaluating risks associated with a property or piece of land prior to purchasing. It is basically “doing your homework” prior to purchasing. When conducting a real estate transaction, the due diligence period typically starts as soon as a purchase and sale agreement has been accepted by both the buyer and seller, and all necessary escrow deposits have been made. During the due diligence period, it is the responsibility of the buyer to conduct all necessary inspections and review all important documentation to ensure that the property they are looking to purchase is without major defects and that they are getting their money’s worth. A good real estate attorney can assist you in preparing and negotiating a contract for purchase of the real property that includes a due diligence inspection period with broad wording to allow you to check for obvious, or patent, and non-obvious, or latent defects. For reference, a patent defect in real estate refers to a flaw, dangerous condition, or other deficiency which is reasonably apparent to an ordinary person and can be seen with the naked eye. For example, if you walked into a house and saw immediately that the house is filled with water due to a leak, that would be considered a patent defect. In contrast, a latent defect refers to a hidden or concealed defect; one which could not be discovered by any ordinary person inspecting the property. One of the most common latent defects which has become a hot topic in recent years is hidden asbestos in the ceiling of a property, which can be highly dangerous if not discovered. Patent or latent defects can be located in the real property itself, land, air or water. They could be environmental, structural, mechanical, electrical, or otherwise. It’s important to inspect the property for all areas where there could be defects prior to buying. The Due Diligence Period in Residential Real Estate Versus Commercial Real Estate There is an ancient Latin saying, “Caveat Emptor,” which means “Let the buyer beware.” This saying means that the seller was not obligated to tell the buyer about defects known by the seller. Essentially, this term places all responsibility to inspect a property for potential defects with the prospective buyer. With regard to residential real estate, this ancient rule no longer applies. As such, a residential real estate purchaser is not necessarily required to inspect a home prior to purchasing. However, as a residential homebuyer, it is still important to inspect a property prior to purchasing to ensure that your property is without defects, which will save you valuable time and money (and not to mention a headache) down the road. For instance, sellers are not obligated to tell you about defects they are not aware of. Thus, if you fail to inspect the property before purchasing, you may discover something the seller didn’t catch, forcing you to try to fix the defect yourself, with your own wallet. There are also cases where a seller may not be entirely truthful about the condition of a property, in the hopes of selling the property faster or for a higher price. Don’t leave your destiny in someone else’s hands by choosing not to have your property inspected prior to purchasing, and make sure to consult a real estate attorney who will look our for your best interests during the due diligence period. However, the principle of “Let the buyer beware” still applies in Florida to commercial real estate. Furthermore, there are also many more regulations and laws associated with commercial real estate. This is because commercial real estate properties are used to make a profit and thus involve tenants or employees, and so it’s incredibly important that commercial properties be structurally sound and safe for their inhabitants. It is also important to note that while residential real estate purchasers have several consumer protection laws and remedies available to them in case of an undiscovered defect, commercial property purchasers are afforded far less leeway. As such, it is even more important for commercial real property buyers to do their due diligence inspections, and thus equally important for commercial real property purchasers to enlist the help of a seasoned commercial real estate attorney. The attorneys at The Orlando Law Group represent property owners, prospective property owners, developers, contractors, lenders, investors, real estate agents, brokers, landlords, tenants and more throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida. If you are dealing with a real estate issue or looking for some preventative real estate legal services, please reach out to our office at 407-512-4394, fill out our online contact form. If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola, and West Orange counties to assist you.

/by

Planning to Buy or Sell Your Unit Within a Community Association? You’ll Need an Association Estoppel

, , , ,

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

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

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

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

Commercial Real Estate

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

Residential Real Estate

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

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

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

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

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

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

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

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

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

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

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

/by

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

, , , , ,

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

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

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

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

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

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

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

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

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

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

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

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

Senate Bill 4D

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) Cancel and reschedule an association meeting.

(c) Designate assistant officers who are not directors.

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

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

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

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

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

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

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

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

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

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

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

(b) Cancel and reschedule any association meeting.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

/by

COA Reserve Funds – What You Need to Know About Association Reserves

, , , , ,

Reserve funds are a key financial asset for your association, and provide a valuable source of funding for costly repairs, replacements and emergencies. Despite the importance of this resource, many Condominium Owners Associations are unsure as to what is needed to fund their reserve. Specifically, this blog will address two (2) concerns: (1) What is required to fund the reserve account; and (2) Requirements imposed by the newly passed Senate Bill 4D condominium inspection law as well as recent amendments to a significant portion of Florida Statutes Section 718, and how these will impact the operation of Condominium Owners Associations here in Florida. What Is Reserve Funding? What Is Required to Fund the Reserve Account? Reserve Funding is essentially a savings account for your association used to save money for costly repairs and replacements of community property. Think of it as the Association’s piggy bank or rainy-day jar. Reserve funds are typically spoken of as being held in one of two ways: pooled reserves and non-pooled reserves. Pooled reserves are funding for multiple assets (roofs, sidewalks, etc.) that are combined into one general account from which all expenses are paid. Non-pooled reserves are when each asset has its own account dedicated to its repairs and upkeep. Funds cannot be transferred under a non-pooled reserve method. Reserve accounts are often found to be underfunded significantly for the amount that could and should be done to keep the association’s community property in good working order. As of December 31, 2024, for items required to be included in a Structural Integrity Reserve Study (more on this briefly), an Association may no longer use those itemized reserve funds (or any interest accruing thereon) for other purposes, and an Association may only use those itemized reserve funds for their designated purposes. Essentially, the use of pooled reserve funds has been eliminated by the amendment of Florida Statutes Section 718. Recently, the Florida Senate rewrote and amended a significant portion of Florida Statutes Section 718, including the portion regarding reserve funding or a lack thereof. Florida Statutes Section 718.112(2)(f)(2a) reads: “The members of a unit-owner-controlled association may determine, by a majority vote at a duly called meeting of the association, to provide no reserves or less reserves than required by this subsection. Effective December 31, 2024, the members of a unit-owner-controlled association may not determine to provide no reserves or less reserves than required by this subsection for items listed in paragraph (g).” Paragraph g of the Florida Statutes Section 718.112(2) as noted by the above section states: An association must have a structural integrity reserve study completed at least every 10 years after the condominium’s creation for each building on the condominium property that at a minimum, inspects the roofs, load-bearing walls or other primary structural members, floors, foundations, fireproofing and fire protection systems, plumbing, electrical systems, waterproofing and exterior painting, and windows. So how may an Association Board go about changing their reserve funding? The board must present a proposed budget to the community assuming full reserve funding. For instance, let’s say an association seeks to reduce or waive their current reserve funding. The association cannot hold a vote to waive or reduce reserve funding until after a proposed budget with full reserve funding has been provided to the membership. If the board would like to put a vote on the table to reduce or waive reserves funding, then they should provide (along with the proposed budget which must be distributed 14 days prior to the budget meeting): (1) a second budget with waived or reduced reserves and (2) a limited proxy to be filled out by unit owners specifically requesting the membership to vote on the second budget. The proxy must include the following wording per Florida Statutes: “WAIVING OF RESERVES, IN WHOLE OR IN PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE ITEMS.” To successfully reduce or waive reserve funding, a majority of the membership (i.e., 51% of unit owners) must vote in favor of the reduction/ waiver. If by the time of the budget meeting arrives the association has received insufficient votes, the board may delay approving the budget to attempt to collect more votes. If a majority vote is not obtained, the board must approve the budget with full reserve funding. If a majority vote is obtained, the board must proceed with the waived or reduced reserve funding. It is important to note that any vote to waive or reduce reserves is only effective for one annual budget. Therefore, the vote must be obtained for every year the board would prefer not to fully fund reserves. Senate Bill 4D Senate Bill 4D was passed as a response to the tragedy in Surfside, Florida that occurred last year when a condominium building collapsed after a long history of maintenance problems and shoddy construction techniques. Senate Bill 4D was effective as of 05.26.2022 and entered fully into Chapter 2022-269 as of 06.29.2022, and the general bill reads as follows: “Building Safety; Providing that the entire roofing system or roof section of certain existing buildings or structures does not have to be repaired, replaced, or recovered in accordance with the Florida Building Code under certain circumstances; requiring condominium associations and cooperative associations to have milestone inspections performed on certain buildings at specified times; authorizing local enforcement agencies to prescribe timelines and penalties relating to milestone inspections; revising the types of records that constitute the official records of a condominium association; prohibiting certain members and associations from waiving or reducing reserves for certain items after a specified date, etc.” Specifically, a few sections should be noted to be of great importance with regard to the upkeep of the condominium buildings. Section 3 of Section 55.3899(2)(b) was added to define “substantial structural deterioration”. It defines substantial structural deterioration as distress that negatively affects a building’s general structural condition and integrity. But it does further note that the term does not include surface imperfections such as cracks, distortion, sagging, deflections, misalignment, signs of leakage, or peeling of finishes unless a licensed engineer or architect performing inspection determines that such surface imperfections are a sign of substantial structural deterioration. Further, concern has been expressed regarding the new “milestone inspection” requirement laid out by Senate Bill 4D. This Senate Bill does not require milestone inspections for condominium and cooperative buildings two stories or less. Per the latest revisions by the Florida Senate to Florida Statutes Section 718, condominium and cooperative buildings three stories and over must receive an inspection within a certain time frame that meets the new milestone inspection requirements for structural integrity. Those that are two or one story do not have to follow the set year inspection requirements, but one should be aware that lawmakers and legislators are looking closely at the condition of condominium buildings when it comes to resident safety. However, as to balconies specifically, if the balcony is supported by items that hold general structural integrity, they are considered under the list to watch for substantial structural deterioration. If left unfixed and without inspection and a balcony structure fails or an individual is injured while the Board of Directions and Community Association Manager is aware of potential substantial structural deterioration regarding the balconies, then such a failure is a breach of an officers and directors’ fiduciary relationship to the unit owners under Florida Statutes Section. 718.111(1). The attorneys at The Orlando Law Group represent condominium owners as well as COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida. If you are a condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike. If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

/by

A Guide to Community Association Records Requests for HOAs and COAs: What Can and Can’t an Owner Request?

, , , , ,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“OFFICIAL RECORDS.—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

16. Bids for materials, equipment, or services.

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

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

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

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

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

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

Note that ONLY the official records of the Association can be requested and inspected by a unit owner. If a unit owner’s request falls outside the bounds of an official record, or if the unit owner’s request is too vague or unreasonable, the Association is not required to provide those records. As such, while owners do have a right to request official records; the Association is not required to provide unofficial records.

What else cannot be requested and inspected? Florida Statute 718.111(12)(c)(3) provides us with an answer for COAs:

“The following records are not accessible to unit owners:

a. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

b. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit.

c. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

d. Medical records of unit owners.

e. Social security numbers, driver license numbers, credit card numbers, e-mail addresses, telephone numbers, facsimile numbers, emergency contact information, addresses of a unit owner other than as provided to fulfill the association’s notice requirements, and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, property address, and any address, e-mail address, or facsimile number provided to the association to fulfill the association’s notice requirements.

f. Electronic security measures that are used by the association to safeguard data, including passwords.

g. The software and operating system used by the association which allow the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

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

For HOAs, similar restrictions are applicable pursuant to Florida Statute 720.303(5)(c):

“The following records are not accessible to members or parcel owners:

1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.

3. Information an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents.

4. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

5. Medical records of parcel owners or community residents.

6. Social security numbers, driver license numbers, credit card numbers, electronic mailing addresses, telephone numbers, facsimile numbers, emergency contact information, any addresses for a parcel owner other than as provided for association notice requirements, and other personal identifying information of any person, excluding the person’s name, parcel designation, mailing address, and property address.

7. Any electronic security measure that is used by the association to safeguard data, including passwords.

8. The software and operating system used by the association which allows the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

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

All of the above is not considered as part of the official records of the Association and thus cannot be requested. An Association is not required to provide any of the above information to owners.

What happens if the Association fails to comply with a records request? It depends. In the case of an HOA, a member who is denied access to official records is entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 720.303. The minimum damages are $50 per calendar day up to 10 days, with the calculation beginning on the 11th business day after receipt of the written request. In the case of a COA, a unit owner who is denied access to official records is also entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 718.111. Minimum damages are $50 per calendar day for up to 10 days, with the calculation beginning on the 11th working day after receipt of the written request. A unit owner who prevails in an enforcement action may also be entitled to reasonable attorney’s fees from the Association or person in control of the records.

If you are a board member who is unsure as to what records you need to provide and what records you cannot provide to a unit owner, it may be helpful for you to seek the help of an Association law attorney as well. An experienced Association law attorney can be of great assistance to both homeowners or condominium owners and Association or board members alike.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“OFFICIAL RECORDS.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

16. Bids for materials, equipment, or services.

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

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

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

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

The official records of the Association may be requested and inspected any association member or the authorized representative of such member at all reasonable times. This right includes the right to make or obtain copies, at the reasonable expense, if any, of the member. For COAs, a renter or tenant of a unit has the right to inspect and copy only the declaration of condominium, the association’s bylaws and rules, and the inspection reports described in ss. 553.899 and 718.301(4)(p). However, while unit owners do have this right; this does not mean that the Association cannot set reasonable rules governing the inspection of Association records. Pursuant to Florida Statutes Chapters 718 and 720, an Association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but cannot require a unit owner to state a reason for the inspection. For example, an Association could limit unit owners to only making one records request per month.

Note that ONLY the official records of the Association can be requested and inspected by a unit owner. If a unit owner’s request falls outside the bounds of an official record, or if the unit owner’s request is too vague or unreasonable, the Association is not required to provide those records. As such, while owners do have a right to request official records; the Association is not required to provide unofficial records. What else cannot be requested and inspected? Florida Statute 718.111(12)(c)(3) provides us with an answer for COAs:

“The following records are not accessible to unit owners:

a. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

b. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit.

c. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

d. Medical records of unit owners.

e. Social security numbers, driver license numbers, credit card numbers, e-mail addresses, telephone numbers, facsimile numbers, emergency contact information, addresses of a unit owner other than as provided to fulfill the association’s notice requirements, and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, property address, and any address, e-mail address, or facsimile number provided to the association to fulfill the association’s notice requirements.

f. Electronic security measures that are used by the association to safeguard data, including passwords.

g. The software and operating system used by the association which allow the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

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

For HOAs, similar restrictions are applicable pursuant to Florida Statute 720.303(5)(c):

“The following records are not accessible to members or parcel owners:

1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.

3. Information an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents.

4. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

5. Medical records of parcel owners or community residents.

6. Social security numbers, driver license numbers, credit card numbers, electronic mailing addresses, telephone numbers, facsimile numbers, emergency contact information, any addresses for a parcel owner other than as provided for association notice requirements, and other personal identifying information of any person, excluding the person’s name, parcel designation, mailing address, and property address.

7. Any electronic security measure that is used by the association to safeguard data, including passwords.

8. The software and operating system used by the association which allows the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

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

All of the above is not considered as part of the official records of the Association and thus cannot be requested. An Association is not required to provide any of the above information to owners.

What happens if the Association fails to comply with a records request? It depends. In the case of an HOA, a member who is denied access to official records is entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 720.303. The minimum damages are $50 per calendar day up to 10 days, with the calculation beginning on the 11th business day after receipt of the written request. In the case of a COA, a unit owner who is denied access to official records is also entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 718.111. Minimum damages are $50 per calendar day for up to 10 days, with the calculation beginning on the 11th working day after receipt of the written request. A unit owner who prevails in an enforcement action may also be entitled to reasonable attorneys fees from the Association or person in control of the records.

If you, as a member of an HOA or COA, have submitted a records request to your Association, who has failed to comply with that records request, it may be helpful for you to seek the help of an Association law attorney. An experienced Association law attorney can be of great assistance to both homeowners or condominium owners and Association or board members alike.

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

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

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

/by

Requesting Records from your Condominium Association or Homeowners Association: What Can and Can’t You Request?

, , , , ,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“OFFICIAL RECORDS.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

16. Bids for materials, equipment, or services.

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

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

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

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

The official records of the Association may be requested and inspected any association member or the authorized representative of such member at all reasonable times. This right includes the right to make or obtain copies, at the reasonable expense, if any, of the member. For COAs, a renter or tenant of a unit has the right to inspect and copy only the declaration of condominium, the association’s bylaws and rules, and the inspection reports described in ss. 553.899 and 718.301(4)(p). However, while unit owners do have this right; this does not mean that the Association cannot set reasonable rules governing the inspection of Association records. Pursuant to Florida Statutes Chapters 718 and 720, an Association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but cannot require a unit owner to state a reason for the inspection. For example, an Association could limit unit owners to only making one records request per month.

Note that ONLY the official records of the Association can be requested and inspected by a unit owner. If a unit owner’s request falls outside the bounds of an official record, or if the unit owner’s request is too vague or unreasonable, the Association is not required to provide those records. As such, while owners do have a right to request official records; the Association is not required to provide unofficial records. What else cannot be requested and inspected? Florida Statute 718.111(12)(c)(3) provides us with an answer for COAs:

“The following records are not accessible to unit owners:

a. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

b. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit.

c. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

d. Medical records of unit owners.

e. Social security numbers, driver license numbers, credit card numbers, e-mail addresses, telephone numbers, facsimile numbers, emergency contact information, addresses of a unit owner other than as provided to fulfill the association’s notice requirements, and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, property address, and any address, e-mail address, or facsimile number provided to the association to fulfill the association’s notice requirements.

f. Electronic security measures that are used by the association to safeguard data, including passwords.

g. The software and operating system used by the association which allow the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

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

For HOAs, similar restrictions are applicable pursuant to Florida Statute 720.303(5)(c):

“The following records are not accessible to members or parcel owners:

1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.

3. Information an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents.

4. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

5. Medical records of parcel owners or community residents.

6. Social security numbers, driver license numbers, credit card numbers, electronic mailing addresses, telephone numbers, facsimile numbers, emergency contact information, any addresses for a parcel owner other than as provided for association notice requirements, and other personal identifying information of any person, excluding the person’s name, parcel designation, mailing address, and property address.

7. Any electronic security measure that is used by the association to safeguard data, including passwords.

8. The software and operating system used by the association which allows the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

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

All of the above is not considered as part of the official records of the Association and thus cannot be requested. An Association is not required to provide any of the above information to owners.

What happens if the Association fails to comply with a records request? It depends. In the case of an HOA, a member who is denied access to official records is entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 720.303. The minimum damages are $50 per calendar day up to 10 days, with the calculation beginning on the 11th business day after receipt of the written request. In the case of a COA, a unit owner who is denied access to official records is also entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 718.111. Minimum damages are $50 per calendar day for up to 10 days, with the calculation beginning on the 11th working day after receipt of the written request. A unit owner who prevails in an enforcement action may also be entitled to reasonable attorneys fees from the Association or person in control of the records.

If you, as a member of an HOA or COA, have submitted a records request to your Association, who has failed to comply with that records request, it may be helpful for you to seek the help of an Association law attorney. An experienced Association law attorney can be of great assistance to both homeowners or condominium owners and Association or board members alike.

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

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

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

/by

Common Misconceptions about Homeowners/Condominium Owners Associations

, , , , ,

Living in a community with a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA, respectively, has its benefits as well as its drawbacks. No matter where you are from, we’re sure you’ve heard of some HOA or COA horror stories from a friend or family member. Although these stories can be intimidating for those looking to purchase property within an HOA or COA, oftentimes, these stories are not necessarily the norm for all Associations. In fact, while the vast majority of people living in a community Association are satisfied with their Association, according to a 2022 study by the Foundation for Community Association Research, there are many misconceptions about Associations perpetuated not only by homeowners or condominium owners, but even by Association board members themselves. In this article, we hope to dispel some of the many misconceptions surrounding Associations, and provide some clarity as to what an HOA or COA actually does and how they operate.

Misconception #1: An Association exists to control its residents and enforce unnecessary rules and regulations-even at the expense of the community and its residents.

First, let’s look at the ultimate purpose of an HOA or COA. An HOA or COA develops and enforces regulations and guidelines for its members, with the ultimate goal and purpose of providing structure to the community, preserve and enhance the community’s property values, and make sure the community is a pleasant and well-maintained place for its residents to live. Simply put, an Association exists for its members and for the community they inhabit. A good Association, run by a responsible and reasonable Board, is an incredible asset for their community and its residents, and can accomplish great things, making the community an overall better place to live.

Now, this is not to say that all Associations are “good” Associations. Some Associations fail to comply with statutory requirements, or do not take into account the opinions of the members. The good news is; there are countless protections and rights provided to homeowners and condominium owners while allow owners to hold their Association accountable for possible misdeeds. For example, under Florida Statute 720.303 for HOAs, and under Florida Statute 718.111 for COAs, unit owners have the right to request and inspect the official records of the Association. You can learn more about this right in our blog regarding HOA and COA records requests linked here. As another example, under the Fair Housing Act, it is illegal to prohibit individuals from moving into or renting in a neighborhood on the basis of sex, religion, disability, race, nationality, or familial status. If an HOA or COA violates this act, the Association may have severe charges pressed against it.

Furthermore, if you as an owner find yourself in dispute with your HOA or COA, you can hire an experienced Association law attorney review your situation and develop a strategy to assist you in resolving the dispute. The attorneys at The Orlando Law Group represent homeowners and condominium owners in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

Misconception #2: Associations exist only to make money and to levy high assessment fees against its members.

Many homeowners ask, why do I have to pay HOA or COA fees? And, where is that money going towards? When you purchase property located within the jurisdiction of an HOA or COA, you become a member of that Association, responsible for paying community expenses called Assessments or, more commonly, referred to as HOA dues or fees. These contributions are collected on a fixed time schedule (such as on a monthly, quarterly, or annual basis) to pay for standard maintenance and upkeep of the community’s facilities and common areas, as well as to improve the community by implementing new facilities and features. Simply put, HOA fees or dues provide the funding which allows the HOA or COA to enforce its rules and regulations as well as carry out its obligations, with the ultimate goal of making the community a more enjoyable place to live. Further, note that Association board members are not paid for serving as board members – serving on the board is a fully voluntary position for most Associations.

As such, HOA or COA funds have a clear purpose for being collected – they are instrumental for allowing Associations to run smoothly and efficiently, and to fulfill their responsibilities under the HOA’s governing documents. As a homeowner, you have a right to request and inspect your Association’s financial records to find out exactly where your assessment dues are going. HOAs and COAs alike are required to keep and maintain their financial records and to foster transparency within their community. If you are concerned or simply want to know what your money is being used for, you can submit a records request to your HOA or COA. You can learn more about this right in our blog regarding HOA and COA records requests linked here. To learn more about why your HOA and COA fees are being directed in certain ways, check out our blog “All About Homeowners and Condominium Owners Associations.”

Misconception #3: HOA or COA rules and regulations cannot be changed or amended.

HOA and COA rules and regulations as well as the governing documents of an Association are not set in stone, and can absolutely be amended or changed. As with many things, with time, certain rules or restrictions become outdated or no longer make sense. An Association and its members may seek to change these rules by amending them.

Each governing document is subject to their own amendatory procedure. Typically, amending the declaration or bylaws requires some form of an owner vote, whereas rules or regulations can be most often amended by the Board without an owner or member vote being necessary or required. Neither Chapter 718 or Chapter 720 of the Florida Statutes contains any requirement for owners to approve or vote on rules and regulations, assuming rulemaking authority has already been granted to the board.

However, this does not mean that owners have no say in the rules and regulations their Board chooses to implement. Association members have the ability to attend board meetings where they can share their opinions and raise any concerns regarding any agenda items the board plans to vote on, including rules and regulations. During a board meeting, property owners can submit a written request to amend or remove certain rules. The board will then review the request independently and come to a conclusion. The best board members will take the time to periodically review their governing documents to ensure everything is satisfactory and current. To learn more about amending HOA/COA documents, check out our blog on Amending HOA Documents and the Unlicensed Practice of Law here.

Misconception #4: Having a management company essentially replaces Association Board Members.

Many Associations, especially larger Associations, hire a management company to assist in the daily operations of the Association. As we previously noted, board members are not paid to serve on the Board, and the position is voluntary. Board members may have their own careers to attend to, and it may be impossible for board members to dedicate 100% of their time to the Association. This is where a management company may step in and take on some of the day-to-day operations of the Association, such as with accounting, property management, dealing with violations, and corresponding with unit owners. For example, perhaps an Association hopes to make the accounting and collections process more efficient and chooses to hire a management company to assist them.

Management companies can be wonderful tools for Associations to utilize in ensuring their daily operations run smoothly and efficiently; but they do not take the place of board members. Management companies cannot make decisions on behalf of the board; cannot amend HOA or COA documents, and cannot pursue legal action on behalf of the Association. The Association’s board members work in conjunction with the management company to improve the operations of the Association and better the community. As such, management companies serve not to replace board members, but instead to assist them in fulfilling the responsibilities of the Association and in serving their residents.

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

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

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

/by

The Governing Documents of an HOA or COA – What do they mean?

, , , , ,

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

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

As a homeowner or condominium owner living in an Association or as an Association board member (or, someone interested in one day becoming a board member), it’s important to have a general understanding of what an HOA or COA does, what an HOA or COA is responsible for, and how an HOA or COA operates. A key aspect of the operation of any HOA or COA is its governing documents, or the documents which control the administration and daily activities of an Association.

As a member of an Association, it’s very important for you to have reviewed and understood the governing documents of your Association and what rules those documents obligate you to follow. Typically, the “governing documents” of the community include the declaration of covenants, the articles of incorporation, the bylaws, and the rules and regulations. Some Associations may have more documents or policies, such as a landscaping policy or an Architectural Review Committee or Board policy.

The declaration is much like your Association’s “constitution” and sets forth the basic covenants and restrictions for the community. If you are looking at investing or renovating the home, make sure to review this document. For example, covenants include the obligation to pay assessments on time and be a member of the association. The requirement that your lot can only be used as a single family home, or can only be rented for certain minimum periods are examples of restrictions which may be found in your Declaration. These are just a couple of examples of restrictions which may be found in your declaration and affect you.

The articles of incorporation establish the Association’s existence, basic structure, and governance.

The bylaws govern the overall operation of the Association. Bylaws will typically address the composition of the Board, how meetings are called, how voting procedures work, and numerous other corporate procedures.

The rules and regulations usually act as a supplement to the covenants contained in the declaration, and typically address everyday matters, such as parking or use of the community’s recreational facilities.

Each governing document is subject to their own amendatory procedure. Typically, amending the declaration or bylaws requires some form of an owner vote, whereas rules or regulations can be most often amended by the Board without an owner or member vote being necessary or required. Neither Chapter 718 or 720 of the Florida Statutes contains any requirement for owners to approve or vote on rules and regulations, assuming rulemaking authority has already been granted to the board.

However, this does not mean that owners have no say in the rules and regulations their Board chooses to implement. Association members have the ability to attend board meetings where they can share their opinions and raise any concerns regarding any agenda items the board plans to vote on, including rules and regulations. To learn more about amending HOA/COA documents, check out our blog on Amending HOA Documents and the Unlicensed Practice of Law here.

A good example of this is having a few backyard chickens. As this practice has risen in popularity, Associations are working through the complexities of having a small chicken coop on their property. When your city or county approves backyard chicken coops, your Association may not allow it.

As we previously stated, it’s very important for you to have reviewed and understood the governing documents of your Association and what rules those documents obligate you to follow. When you purchase property located within the jurisdiction of an Association, you become a member of that Association and are thus required to follow the Association’s rules and restrictions set out in the Association’s governing documents.

If you were starting a new job, you would want to become familiar with your new job’s standard operating procedures or general rules for doing the job to ensure that you know what guidelines you need to follow in order to be successful. The same logic can be applied to your HOA or COA-you want to be familiar with the rules to ensure that you and your home are in compliance with the Association’s governing documents. Otherwise, if your home falls outside of compliance, and you do not correct the violation in a timely manner, you could be subject to fines and other penalties, which the Association would likely be within their legal right to enforce as laid out in their governing documents and Florida Statutes Chapter 718/720.

Nowadays, many HOAs or COAs have their own website which contains their governing documents for their residents to easily download and review. Or, you can request a copy of the Association’s official records by making a records request, which we will discuss in greater detail in our next blog.

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

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

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

/by

HOA/COA Fees – Why Do I Have To Pay For Them, and Where Is That Money Going?

, , , , ,

Many homeowners ask, why do I have to pay HOA or COA fees? And, where is that money going towards? When you purchase property located within the jurisdiction of an HOA or COA, you become a member of that Association, responsible for paying community expenses called Assessments or, more commonly, referred to as HOA dues or fees. These contributions are collected on a fixed time schedule (such as on a monthly, quarterly, or annual basis) to pay for standard maintenance and upkeep of the community’s facilities and common areas, as well as to improve the community by implementing new facilities and features. Simply put, HOA fees or dues provide the funding which allows the HOA or COA to enforce its rules and regulations as well as carry out its obligations. Each Association and its Board determines how much residents have to pay each month, quarter or year by preparing a budget.

What do HOA fees cover?

Generally, HOA fees pay for the upkeep of common areas and facilities, including:

  • Sidewalks/walkways.
  • Parks.
  • Lighting.
  • Elevators.
  • Pools.
  • Clubhouses.
  • Gyms or fitness centers.

HOA fees can also cover services for the community, such as:

  • Lawn care and landscaping.
  • Maintenance and repairs.
  • Snow removal.
  • Trash pickup.
  • Security.
  • Pest control.
  • Insurance for common areas.
  • Social events, such as block parties or holiday parties.

Often, part of your HOA or COA dues goes towards the Association’s reserve fund, which pays for upcoming maintenance or large-scale projects (such as building a new park), as well as provides funds for possible emergency repairs. Think of it as the Association’s piggy bank or rainy day jar. If your HOA or COA does not have enough money in its reserves and needs to pay for a repair or project, they can issue what is referred to as “special assessments.” Associations can also raise or lower Association fees at any time, if the Board approves. For example, many Associations needed to dip into those funds after the recent hurricanes to fix a brick wall or to remove a tree from the common area. These funds can also be used for special large-scale projects, such as building a new park or clubhouse for the community to enjoy.

All fees and special assessments are set by the board of directors based on the budget they want to spend. A multitude of decisions go into the annual budget, including increases in maintenance costs or long-term goals of new or renovated amenities. Of course, you have a voice in this. A proposed budget should be available to all members. You can go to your Association meetings and state your case for a different fee or budget. While this mostly happens once a year, Associations can also raise or lower association fees at any time, if the board approves.

As a member of the Association, you are required to pay HOA/COA fees or assessments, just like any other bill. If you forget a payment or fall on hard times, there may be a grace period; but this depends on the Association. After that grace period, expect to get a friendly collection letter, late fees, and possible interest applied to your account.

What happens if you don’t pay your HOA/COA fees? If you receive collections letters and warnings and still don’t pay your HOA/COA dues, the Board may choose to take further legal action. This can include:

  • Collections: If your HOA/COA sends your past-due account to a collections agency or some other mechanism to collect the overdue funds, it can damage your credit score.
  • Liens: If your HOA/COA puts a lien on your property, that can come up in a title search and make it difficult to sell your house if you hope to move. Most Associations have the legal right to place a lien on a home or unit to secure the payment of past due assessments. To learn more about the Association collections process, read our blog “The Ins and Outs of the Association Collections Process.”
  • Lawsuits: The HOA can sue you for unpaid dues in some states, including in Florida. This could end in wage garnishment or a levy against your bank account.
  • Foreclosure:  In some cases, your HOA may be able to foreclose on your property based on its covenants and state law. 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.

If you come up tough times financially and have trouble paying your fees, contact your HOA or COA board to schedule a meeting. You may be able to work out a payment plan to see you through tough times. It’s always preferable to work out a payment plan rather than to continue not paying and allow late fees and interest to rack up on your account. In some cases, these late fees and interest can one day amount to even more than the actual assessment amounts which are past due.

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

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

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

/by

All About Homeowners and Condominium Owners Association

, , , , ,

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

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

As a homeowner or condominium owner living in an Association or as an Association board member (or, someone interested in one day becoming a board member), it’s important to have a general understanding of what an HOA or COA does, what an HOA or COA is responsible for, and how an HOA or COA operates.

First, what does an HOA or COA do, and what is the general purpose of an HOA or COA? While each and every HOA or COA is slightly different and may operate in slightly different ways, the overall purpose of any HOA or COA is the same. An HOA or COA is an organization that develops and enforces rules and guidelines for properties and residents living within a subdivision, planned community, or condominium. Generally, an Association is made up of and operated by residents of the community, who are elected by fellow members of the Association. Those who are elected to run an HOA or COA are usually referred to as the HOA or COA’s Board, or “Board of Directors.” When you purchase property located within the jurisdiction of an HOA or COA, you become a member of that Association, and are required to follow the rules and regulations associated with that Association.

An HOA or COA develops and enforces regulations and guidelines for its members, with the ultimate goal and purpose of providing structure to the community, preserve and enhance the community’s property values, and make sure the community is a pleasant and well-maintained place for its residents to live. An HOA or COA may, and commonly does, hire a property manager or property management company to assist in carrying out the everyday operations of the Association. This property manager is typically known as a Community Association Manager, or CAM.

The responsibilities of an HOA or COA may include (but are not limited to) any of the following:

Develop and Enforce Rules and Regulations

  • Develop and approve covenants, conditions, rules, and bylaws, as well as amend old rules and regulations when necessary
  • Hear complaints from residents and make decisions as to how to handle disputes within the community
  • Enforce penalties against residents if they do not comply with the Association’s rules and regulations in the form of fines or legal action

Hold Meetings and Communicate with Members

  • Hold meetings for members, hear out concerns of the members, determine voting matters, vote on issues, elect a new Board, etc.
  • Hold meetings for the Board of Directors
  • Communicate with homeowners, property managers, attorneys, and other personnel
  • Planning events or social activities.

Oversee the Finances of the Community

  • Set annual and/or monthly budget with input from owners
  • Keep and maintain financial records
  • Set and collect assessment fees
  • Pursue collections against homeowners who do not pay their assessments on time
  • Maintain a reserve of funds
  • Allocate spending for insurance coverage

Maintain the Neighborhood

  • Budget for upkeep and maintenance
  • Collect bids from contractors for maintenance
  • Schedule and arrange inspections
  • Respond to emergencies

Some HOAs or COAs are voluntary, while others are mandatory. Voluntary HOAs/COAs are optional to join, but members can access shared amenities, like a clubhouse, gym, or pool. In most cases, if you don’t join the Association, you don’t get the perks. Mandatory HOAs/COAs are exactly as they sound-mandatory. If you purchase property in a mandatory HOA or COA, you must pay HOA/COA fees and follow the rules and regulations of that Association. When buying new property, you will want to know whether there is an Association, and whether that Association is mandatory or voluntary. Please note that throughout the rest of this blog, we will mainly be referring to mandatory Associations.

The authority of HOAs and COAs to enforce their rules and regulations is rooted in statutory authority by the state of Florida. Chapter 720 of the Florida Statutes empowers and controls the ability of HOAs to enforce their rules, whereas Chapter 718 of the Florida Statutes empowers and controls the ability of COAs to enforce their rules. While Chapters 718 and 720 are similar in many ways, there are some key differences; so if you are looking to learn more about the legal authority that grounds your HOA or COA, make sure that you are looking at the right chapter! While the Florida Statutes empower HOAs and COAs to enforce their rules, the Statutes also restrict HOAs and COAs in several key ways and provide rights to homeowners and condominium owners, such as the right to peacefully assemble, display the U.S. flag, request official Association records, and, in serious cases, the right to recall the Board.

While statutes set the framework for HOAs and COAs, every Association is different. After all, the rules of any community should be set by the community itself, not by politicians in Tallahassee. However, Associations must always adhere to the statutes which govern them.

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

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

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

/by

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

, ,

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.

/by

The Ins and Outs of the Association Collections Process

, , , ,

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.

/by

Breaking Down Florida Bill 4-D

, , ,

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.

/by

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

, ,

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.

/by

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

, , , ,

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.

/by

REAL ESTATE AGENTS – WHEN A CLIENT NEEDS PROBATE

, ,

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!

/by

Five Types of Deeds to Transfer Property In Florida

, ,

In Florida, a Deed is required to transfer ownership of a piece of property, regardless of whether that property consists of buildings or vacant land. Contrary to popular opinion, the title to the property is not conveyed by the Mortgage in Florida (the Mortgage creates a lien on the property). What does a Deed specifically do? In common law, a deed is any legal instrument in writing which passes, affirms, or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. As you may expect, what sounds like a simple transference can become overtly complicated. You may need the property to transfer in a specific way. That is why there are different types of deeds that can accomplish a variety of objectives. What is the Difference Between a Deed and Title? A deed is a physical document that conveys ownership of a property, while a title refers to the concept of ownership rights. One illustration people use to understand this concept is the idea of owning a book. You can own a physical copy of a book, but you cannot own a physical copy of the title. The title is a concept, whereas the book is something physical. In this way, a deed is a physical item that you must have after you purchase property. Why are there multiple types? The different types of deeds exist to account for what the grantor can convey, what the grantor wants to convey, and what warranties the grantor wants to be encompassed within. The types of deeds we see most often are the general warranty deed, the special warranty deed, the quitclaim deed, and the ladybird deed. Each of these deeds have a diverse range of conveyance, and depending on your objectives, you will want to narrow it down to the one that matches your goals. There are five (5) main types of Deeds in Florida that will be addressed in this article: (1) Warranty Deed; (2) Special Warranty Deed; (3) Quitclaim Deed; (4) Life Estate Deed; and the (5) Enhanced Life Estate Deed (Lady Bird Deed). Each of these Deeds have different affects that come with each of these Deeds, and it is important to know when receiving a property what type of title you will be receiving.

Warranty Deed- Conveyance

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

Special Warranty Deed- Conveyance

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

Quitclaim Deed- Conveyance

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

Life Estate Deed- Estate Planning

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

Enhanced Life Estate Deed- Estate Planning

Also known as a Lady Bird Deed, an Enhanced Life Estate Deed is a special form of Deed that allows an owner to Deed the property to the beneficiary(ies) of their choice, but the Deed does not become effective until the death of the Grantor. This type of Deed is only available in a handful of states, and Florida is one of them. This allows the Grantor to revoke the Deed before their death, create a new Deed, sell the property, take out a mortgage, or any other activities conveying or encumbering title to the property, whereas a traditional life estate requires the Grantor to get consent from the Remainderman. This is a Deed used in estate planning where the owner wants to retain the ability to change their mind and this type of Deed allows the property to pass to the beneficiaries at the time of death of the Grantor, bypassing the probate process in Florida. This Deed is almost always recommended when a parent is looking to add their child to a deed “just in case something happens.” Does a Mortgage Convey Title? This is a point of confusion that we often see. A mortgage does not convey title. For that, you will need a deed. The reason we like to make the distinction is because many times, individuals might think that a mortgage does convey title, but it does not. A mortgage is a loan on the property itself, and it is the deed that will convey title and ownership of the property. They are separate entities with interlocking components, and believe it or not, there are absolutely different types of mortgages. The best way to look at it: a mortgage is not a deed, and a deed is not a mortgage.

Conclusion

There are quite a few different types of Deeds in Florida, and this article is certainly not an exhaustive list. The Deed that is right for you will depend heavily on the specific facts of your situation. Reach out to us today if you would like to discuss which type of Deed you are looking for! The attorneys at The Orlando Law Group represent property owners, prospective property owners, developers, contractors, lenders, investors, real estate agents, brokers, landlords, tenants and more throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida. If you are dealing with a real estate issue or looking for some preventative real estate legal services, please reach out to our office at 407-512-4394, fill out our online contact form. If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

/by
Clarifying What a Deed Is

What Is A Deed – Four Types and Uses

,

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.

/by
key

The Current State of Foreclosures, Evictions, and Real Estate

, , ,

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.

/by
Eviction notice and gavel on a table.

The Tidal Wave of Evictions Begins to Break

, , , ,

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.

/by
© 2025 The Orlando Law Group.