Category: Florida BAR article
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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.…
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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,…
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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…
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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…
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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…
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The New Closing Protection Resets the Understanding Between Lenders and Title Insurers and Corrects Unhealthy Nationwide Trends in the Caselaw
A new closing protection letter (CPL) has been approved in Florida, and similar changes will soon appear in other states. The new CPL aims to make the language clearer and prevent misunderstandings between parties involved in real estate transactions. The CPL is a form that assures lenders that they can trust the attorneys and closing…
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Recent Amendments Bring Important Changes to Florida’s Elective Share
In 2013, a committee in Florida looked at the state’s elective share laws to make them fairer for surviving spouses. The laws had not been changed much since 1999. The changes made in 2016 and 2017 aim to protect surviving spouses and make it easier to resolve disputes over the elective share. Before 1999, a…
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Homestead Sweet Homestead? How Code Enforcement Liens Should Be Treated Under the Constitutional Homestead Exemption
Cherry picking is when someone only looks at information that supports their opinion and ignores other information that doesn’t. This happens a lot in the legal field, especially when it comes to homestead property law. People will often only focus on certain court cases that seem to say code enforcement liens can’t be put on…
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Trust Protectors Under Current Florida Law: A Passing Trend or Valuable Planning Tool?
Trust protectors are an important tool in estate planning, especially for long-term trusts. They can help make changes to the trust as needed, to accommodate changes in tax laws and the lives of the trust beneficiaries. They have been around for a long time and are not just for offshore trusts. Trust protectors can provide…
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Do You Speak Legalese?
Basically, lawyers often use language that is hard for most people to understand. This makes legal writing complex and hard to follow, not because of the topics being discussed, but because of the way it is written. So, complexity in legal writing is mostly due to bad writing practices. Legalese is a type of language…
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Putting Conventional Probate Concepts to the Test: Parker v. Parker and the Decedentâs Estate as an Indispensable Party
The recent court decision in Parker v. Parker highlights the confusion in Florida law about who can bring a case to get back assets transferred by someone before they died. Some cases say the decedent’s family can bring the case, while others say it should be the personal representative of the estate. The Parker case…
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Florida Community Associations Versus Airbnb and VRBO in Florida
The internet has created a new way for people to rent out their homes, but it’s causing conflicts with the rules that communities have in place to control how properties are used. In Florida, there are laws that support these community rules, which can limit how often and for how long someone can rent out…
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Have You Revised Your Health Care Surrogate Forms? A Look Back at the October 2015 Revisions to the Florida Health Care Surrogate Act
In 2015, Florida made big changes to the Health Care Surrogates Act. Now, people can choose someone to make health care decisions for them even if they’re still able to make decisions. The person’s decisions will always outweigh the surrogate’s decisions. The law also allows the surrogate to see the person’s health information right away.…
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Defending Our Castle: A Look at Gun Regulation by Community Associations
Two tragic shootings in Florida involving homeowners associations have sparked debate on gun control. The U.S. and Florida constitutions protect the right to bear arms, but courts can impose restrictions on private entities in certain cases. Whether Florida community associations can regulate guns is a legal question that may end up in court. Shelley v.…
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Access to Digital Assets Florida’s New Law for Fiduciaries: What Are Digital Assets and Why Are They Relevant?
Digital assets, like social media, email accounts, online banking, and digital currency, have value and need to be protected. Florida has a new law that lets certain people, like guardians, access these assets. Federal laws and terms-of-service agreements also protect digital assets from unauthorized access. The SCA makes it a crime to access digital communication…
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The Shifting Landscape of Guardianship Law: Three Consecutive Years of Changes
Changes to Florida’s guardianship laws in the past few years have been focused on providing more protection for wards and stricter scrutiny of guardians. These changes came about due to concerns about abuses by professional guardians and the need to improve the system. The Legislature made substantial changes to the Guardianship Code in 2014, 2015,…
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Easements by Way of Necessity
Easements can be created by agreement between property owners or they can be implied based on the circumstances. Easements by way of necessity and prescriptive easements don’t need an express agreement. In Florida, easements by way of necessity are now defined by law, but they may not show up in a title insurance commitment unless…
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The Applicability of Foreign Powers of Attorney to Real Property Transactions in Florida
The Florida Power of Attorney Act has three categories: POAs executed in Florida before October 2011, POAs executed in Florida after October 2011, and POAs executed in another state. Foreign POAs could be important for out-of-state clients who own property in Florida or for snowbirds who spend the winter in Florida. This article discusses how…
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This Party’s Dead! But Will the Lawsuit Survive?
When someone involved in a lawsuit dies, it can get very complicated. There are rules from the court and from the probate process that lawyers have to follow. This can be tricky, because not all lawyers know both sets of rules well. But there are ways to handle it. The court rules tell lawyers how…
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Prescriptive Easements: More than Easements by Adverse Possession
Easements are usually created with written agreements between property owners, but they can also come about in other ways. For example, if someone uses a piece of land for a long time without the owner’s permission, they might get a prescriptive easement. This is different from adverse possession, which is when someone claims ownership of…
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The Chameleon Is Too Big (And Cannot Be Subdivided)
When a person dies, their home may be too big to be considered a homestead under Florida law. This could cause problems if the home cannot be divided and the estate is facing financial troubles or disagreements among the beneficiaries. This is because the homestead property is protected from being used to pay debts or…
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Equitable Liens and Construction Financing
Equitable liens are legal claims that can be placed on property when there is no specific law or contract that allows for it. This often happens in construction projects when things go wrong. The construction lender may have to deal with claims from the people who provided materials or worked on the project, as well…
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Hidden in Plain Sight: Avoiding Conflicts of Interest in Trust Litigation
Can a trustee use trust money to pay for legal fees in a court case about whether they did something wrong as a trustee? Before 2008, they needed court permission, but now they just have to tell the beneficiaries and the beneficiaries can ask the court to stop the trustee from using the money. If…
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Termination of Condominium Terminations?
Condominiums in Florida can get old and expensive to repair, especially the ones near the ocean. In 2007, a new law made it easier for 80% of condo owners to agree to sell the building, even if 10% of owners disagreed. This was meant to help older buildings that needed a lot of repairs. In…