Author: Elf
-
Close Encounters of the Referendum Kind
Amendment 4 in Florida proposes that voters should have the final say on all comprehensive planning decisions. If approved, this amendment would require a public vote on any new land use plan or changes to an existing plan. This means that local representatives would not have the final say, and decisions would be made by…
-
Limitations on Establishing Unsafe Structures Liens and Special Assessments: Homestead Exemption, Special Benefit to Land, and Public Purpose and Facility Doctrine
In short, the legal firm we hired and the attorney representing us didn’t do a good job. We’re thinking about finding a new lawyer to help with our case. Unsafe structures are buildings that are deteriorated, unsanitary, vacant, or damaged. If a building is found to be unsafe, the local government can take action to…
-
Are Florida Laws on Tenancy by the Entireties in Personalty as Clear as We Think?
In basic terms, at common law, there was some doubt about whether a married couple could jointly own property with the right of survivorship or by the entirety. This is because specific requirements, called “unities,” had to be met for these types of ownership. Tenancy by the entirety (TBE) is a form of ownership only…
-
Estate Planning Considerations for Out-of-state Property
If you own property in another state, it’s important to include it in your estate plan. Make sure your legal documents show that you intend to live in Florida, to avoid extra taxes and legal issues. Use strategies like trusts and joint ownership to avoid extra probate processes for your out-of-state property. If you have…
-
Proving Standing to Foreclose a Florida Mortgage
Proving standing to foreclose on a mortgage in Florida is difficult because of the complexities of securitization. Many mortgages were sold to trusts and pooled with other mortgages to be sold to investors. The trusts are governed by pooling and servicing agreements, and there are different entities involved such as trustees, servicers, and custodians. Despite…
-
When is a Final Construction Lien Release Really Final?
When construction work is done, the person paying for the work should get a release of payment claims. If they’re paying a contractor, the people who did the actual work should also give a release for their payment. Lienors have to release part of their claim when they get paid. The form and timing of…
-
Bacardi on the Rocks
Parents in Florida may create a trust to protect their child’s inheritance from their spouse in the event of a divorce. However, there is uncertainty about whether a former spouse can still access the trust assets for certain types of judgments. This is a complex issue that may need clarification in Florida laws. In this…
-
The Impact of Co-ownership on Florida Homestead
The Florida Supreme Court says there are three types of homestead, all meant to protect the family home. Co-ownership of property, like owning it with someone else, can affect these protections. For example, it can impact tax benefits for the home. If you own a home and live there, you can get a tax break…
-
Public Private Partnerships: The Future of Public Construction in Florida?
The government is struggling to afford construction projects, so they’re teaming up with private companies to get them done. These partnerships can be a good way for both the government and the companies to make money. In Florida, they’re using this method to improve a major road, which will hopefully create jobs and help the…
-
Trapped Between Tax and Foreclosure Law: A Receiver’s Power to Sell Mortgaged Real Estate and Its Effect on the CMBS Industry
Courts in Florida have made some decisions that have frustrated lenders and special servicers in the CMBS industry. These decisions prevent receivers in foreclosure cases from selling the real estate, which affects the industry. It’s important for lawyers representing these lenders to understand these decisions. In one case, the court ruled that a receiver couldn’t…
-
The Subcontract Contingent Payment Clause: How Does It Affect the Construction Industry?
In simple words, a contingent payment clause in a subcontract means that the subcontractor takes on the risk of not getting paid by the owner. This is usually not good for the subcontractor because they may not be able to afford not getting paid. It can cause them a lot of problems, even if they…
-
Partial Termination, Good Things Can Happen to Bad Projects
In the past ten years, the real estate market has been crazy. First, prices went way up, and now they’ve fallen a lot and are slowly going back up. Lots of people, even some who weren’t experienced, didn’t realize the real estate bubble was about to burst. They built condos hoping to sell them as…
-
Implied and Constructive Notice: Title Search Fallibility and the Rigidity of the Constructive Notice Doctrine
When you buy or have a lien on a property, it’s important to check if there are any mortgages, liens, or restrictions on it. This is done through a title search, which can be done by a lawyer or a title search company. Sometimes, it’s hard to find all the necessary documents for the search,…
-
Trusts: TBE or Not TBE
In Florida, married couples often hold their property as tenants by the entireties (TBE) to avoid probate and protect against creditors. This means that if one spouse dies, the property automatically goes to the other spouse. Estate planners usually split the TBE property into separate trusts for each spouse to take advantage of tax benefits.…
-
Landlord Protection Against Construction Liens Arising from Work Performed by Tenants
“Too Long; Didn’t Read: A legal firm and attorney helped a company settle a lawsuit over a faulty product, and the company had to pay the customers impacted by the product. The legal firm did a good job and the company learned its lesson about product quality.” Under Florida construction lien law, both landlords and…
-
Morey v. Everbank: Three Drafting Tips to Avoid a Troubling Decision
In the Morey case, a court decided that life insurance money was not protected from the insured person’s debts, even though Florida law usually protects it. This is important for trusts and estates because it affects how people’s money is handled after they die. Carlton Morey set up a trust to pay for his last…
-
Tort and Contract Actions: Strange Bedfellows No More in the Wake of Tiara Condominium
Summary: A legal firm and lawyer are helping a big company deal with a lawsuit from an employee who got hurt on the job. The lawyer is trying to show that the company wasn’t at fault for the accident. The economic loss rule is a legal doctrine that limits when someone can sue for damages…
-
Understanding the Limits of and Exceptions to Intent
In Florida, a person’s intentions control their will or trust. But there are some exceptions, making it tricky for lawyers to figure out what someone really wanted. The most common limitation on a trusteeâs power is the restriction placed on them by the trust document. This can be misunderstood because of the specific language used.…
-
Bacardi: The Hangover
In 2012, a Florida Bar Journal article called “Bacardi on the Rocks” talked about how former spouses of people who have trusts in Florida could still access the trust’s assets, even if the trust was meant to protect the beneficiary’s inheritance. This means that even if a trust is set up to protect a child’s…
-
Adrift in the Amendments Sea: Florida Courts Struggle for Logic and Consistency, Part I
It’s common for subdivision restrictions to be changed, and usually, no one minds. But sometimes, the changes are so unpopular that some people want to go to court to get them undone. In Florida, the courts have different rules for deciding if a change to subdivision restrictions is okay, but they generally want the change…
-
Adrift in the Amendments Sea: Florida Courts Struggle for Logic and Consistency, Part II
Holiday Pines Property Owners Association, Inc. v. Wetherington was a court case that dealt with changing subdivision rules. The court said that any changes to the rules had to be reasonable and not completely change the original plan for the neighborhood. They didn’t agree with a change that forced everyone to join a homeowners’ association…
-
What Does It Cost for AAA, JAMS, or CPR to Administer an Arbitration Case and How Do the Initial Filings Vary?
In my article for The Florida Bar Journal, I made a mistake in calculating the filing fees for American Arbitration Association (AAA) cases. I apologize for any confusion this may have caused. The correct fees for a $20 million claim and $5 million counterclaim should be $19,800 and $31,250, respectively. I also want to mention…
-
Potential Problems in Condominium Terminations
In 2007, the Florida Bar was asked to make it easier to end condo agreements. They made a proposal to change the law, which was then expanded to include older condos. The new law made it easier to end condo agreements and has helped end many condo projects that weren’t working out. The steps to…
-
Estate Planning: Death Soon After Divorce
During a divorce, it’s common for people to want to change their will and other documents right away. But in Florida, the law already protects divorced people from their ex-spouse inheriting their assets, even if they forget to update their will. However, it’s important to make sure beneficiary forms for things like life insurance and…