Author: Elf
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Durable Powers of Attorney: A Less Restrictive Alternative?
In Florida, there are laws that give someone the power to make decisions for another person if they become unable to do so. These laws have changed over time to allow more people to act as a decision maker. An article questions how much power these decision makers actually have and if they need to…
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The Return of the Pink Panther or Johnson v. Davis, Redux
In 1985, the Florida Supreme Court made a new rule for buying houses. The case involved Mr. and Mrs. Davis buying a house from Mr. and Mrs. Johnson. Before the sale was completed, the Johnsons said there were no problems with the roof, but after the sale, the Davises found out there were big leaks…
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Disbursement of Surplus Proceeds from a Foreclosure Sale & The Urban Myth of the Race to the Courthouse
Urban legends are stories that are unbelievable but still seem possible. Some examples include wiping out debt with a first payment, scamming money with fake deposit slips, and paying off debt with a fraction of the amount. In the legal world, there’s a myth where a lawyer convinces a judge to give leftover money from…
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The 2004 Amendments to Florida’s Construction Defect Statute: Some Solutions and More Confusion
Florida’s construction defect law, which started in 2003, changed how construction defect claims are handled. Now, homeowners have to tell contractors about any problems before they can sue. This is new and has caused confusion for lawyers and others involved in construction cases. The statute about construction defects has caused problems for both contractors and…
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Minimizing a Personal Representative’s Personal Liability to Pay Taxes, Part I
As a personal representative of a Florida probate estate, you have to file tax returns and pay taxes for the deceased person and their estate. If you don’t do this, you could be personally responsible for the unpaid taxes, penalties, and interest to the IRS and the Florida Department of Revenue, even years after the…
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Minimizing a Personal Representative’s Personal Liability to Pay Taxes, Part II
In Part II of the article, the authors give advice to a personal representative (PR) on how to minimize personal liability for federal and state tax obligations. They recommend filing tax returns for the years before the decedentâs death, gathering and reviewing the decedentâs tax and financial information, and filing necessary forms with the IRS…
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Understanding the Testamentary Effects of Community Property Rules
Due to a lot of people moving to Florida, the state has community property rules that are important in legal decisions. In 1992, the Florida probate laws were changed to include a version of the Uniform Disposition of Community Property Rights at Death Act. This act affects what happens to a person’s property after they…
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Not All Bonds Are Created Equal: Distinguishing a Common Law Bond From a Statutory Bond
In Florida, the construction industry is booming, but there are also a lot of legal disputes. One common cause of these disputes is poorly written documents, like contracts and bonds. There are two main types of bonds for construction projects: statutory bonds, which are required by law for public projects, and common law bonds, which…
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The Status of Nonconforming Use Law in Florida
For the past 30 years, people in Florida have been moving to the center of the state for new homes and communities. Now, with land running out and traffic getting worse, they are starting to go back to the coastal areas that were developed before. Local governments are making plans for this redevelopment to keep…
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Disclaimer Statute May Permit Judgment Debtors to Deliver Money to Friends or Family With Nothing to Creditors, But Not Always in Florida
Yes, there may be a way for a judgment debtor in Florida to prevent a judgment creditor’s lien from attaching to inherited assets, but it depends on the debtor’s financial situation. The debtor may be able to use a legal process called a disclaimer to avoid the creditor’s claim, but only if the debtor is…
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A Trustee’s Duties and Responsibilities Under Discretionary Invasion Provisions
In many trusts, the trustee has the power to decide how much money or property to give to the beneficiaries. This is to make sure the needs of the beneficiaries are met even if they weren’t planned for. But it can be hard to know exactly how much power the trustee has in each situation.…
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Florida Construction Liens: Representing the Residential Owner
This article talks about how the law in Florida protects homeowners who are having a house built. In the past, homeowners could be held responsible for paying bills twice, but now the law protects them as long as they follow certain rules, like not paying the builder before receiving a notice. There are also ways…
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Domicile Planning: Don’t Take it for Granted
Domicile planning is an important but often overlooked aspect of legal and financial planning. Domicile is basically where a person considers their permanent home. It’s important to ask the right questions at the right time to help clients plan for their domicile and avoid problems in the future. This can help them and their families…
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Beyond Statute, Rule, and Contract: Equity as a Basis for Awarding Attorneys’ Fees
In Florida, attorneys’ fees can only be awarded if there is a specific law, rule, or contract that allows it. In some cases, like probate, guardianship, trust, and family courts, attorneys’ fees can be awarded to make things fair for everyone involved. There are also three other reasons that attorneys’ fees can be awarded: if…
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Must Information in the Public Record be Disclosed to Buyers of Residential Real Property and May it be Misrepresented?
This article discusses the laws in Florida related to hiding or lying about important information when selling a house. This can include things like structural problems, pests, flooding, zoning, and environmental issues. It can also involve not telling buyers about things in the public records that could affect the property. There have been a lot…
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New Urbanism: Recreating Florida by Rewriting the Rules
New urbanism is a planning philosophy that focuses on creating compact, mixed-use, and pedestrian-friendly communities to combat problems like traffic, environmental damage, and ugly urban areas. Florida is the birthplace of new urbanism and has the most new urban projects. This approach looks to older towns and cities for inspiration and aims to bring back…
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Who Decides Whether to Build It Higher: The Condominium Community or the Court?
The board of the condominium community has the duty to maintain the common elements, but they need approval from the unit owners to make significant improvements or alterations. Some court decisions have allowed boards to make unilateral decisions if they believe the improvements are necessary for maintaining the common elements, but not all courts agree…
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Rasmussen Court Allows Both Spouses $125,000 Exemptions and Protects Appreciation Within 1,215 Days of Bankruptcy
After the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), courts have interpreted the limits on homestead protection. In most states, including Florida, debtors can only exempt up to $125,000 of their homestead property if they filed for bankruptcy within 1,215 days of acquiring the property. In the case of Rasmussen, a couple…
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The Status of Florida Law on Contract Zoning: Practical Drafting Suggestions to Avoid Contract Zoning Claims in Settlement Agreements
In 1956, the Florida Supreme Court ruled that local governments cannot make secret deals with developers to change zoning laws in exchange for certain conditions. The case, Hartnett v. Austin, involved a challenge to the City of Coral Gables’ decision to rezone a property for commercial use. The court ruled that requiring future contracts between…
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Foundations of the Procuring Cause Doctrine
These are stories about real estate agents in Florida. They get their money from selling houses, so when there’s a dispute over who should get paid, it’s a big deal. The legal principle that comes into play is called the procuring cause doctrine, and it applies to both residential and commercial real estate. It’s a…
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The New Homestead Trap: Surviving Spouses Are Trapped by Life Estates They No Longer Want or Can Afford
Florida’s homestead laws are causing problems for surviving spouses. The cost of living in their homes has gone up, including property taxes, insurance, and special assessments for hurricane damage. Many surviving spouses can’t afford to live in their homes anymore and want to move, but they’re trapped because they can’t sell or change their life…
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Should You Incorportate a Personal Power Into Your Client’s Trust?
A personal power in a trust is a special kind of power given to someone the settlor really trusts. It’s different from making someone a trustee because it shows even more confidence in the person chosen. With a personal power, the person has the final say on certain decisions about the trust, and no one…
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What Every Attorney Needs to Know About Estate Planning
When people get married, they need to update their estate plans. This includes things like beneficiary designations on retirement accounts and life insurance. If someone dies without updating their estate plan after getting married, their spouse may be entitled to a certain amount of their estate, even if it doesn’t match what the deceased wanted.…
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The Impact of Unlicensed Contractor Activities
If you’re working in construction, you need to have a license from the Florida Department of Business and Professional Regulation. This is important because without a license, any contracts or legal rights you have might not be enforceable. This means that if you want to change your business structure or merge with another company, you…