Tag: real-estate
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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…
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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…
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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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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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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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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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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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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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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…
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Enter the Twilight Zone: The IconBrickell Case and Mixed-Use Condominiums
Mixed-use developments in Florida are becoming more common, with buildings that have a lot of different uses in one place. For example, the Four Seasons in downtown Miami has offices, a hotel, a gym, and residential units all in one building. But, there can be challenges with figuring out who is responsible for maintaining shared…
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The End of the Two Subscribing Witnesses Requirement for Florida Leases
The Florida Legislature changed a law so that two witnesses are no longer needed for a lease of real property. This makes the process simpler and brings Florida in line with most other states. The old law, which dates back to before Florida was a state, required two witnesses for leases longer than a year.…
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Legal Magic: Turning Real Property Foreclosures Into Uniform Commercial Code Sales
When people borrow money to buy a house, they have to follow certain rules to pay it back. If they don’t follow the rules, the lender can take the house away. This process is called foreclosure. The rules for foreclosure are different in each state, and some states give borrowers more time to fix the…
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The Yellow Brick Road to Oz Becomes Clearer
The Tax Cuts and Jobs Act of 2017 added a new tax incentive called the Qualified Opportunity Zone (QOZ) program. This program allows taxpayers to defer paying tax on capital gains from selling an asset and also eliminate some of the tax on those gains. To take advantage of these benefits, investors must act before…
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Homestead Planning Under Florida’s New Safe Harbor Statute
The new law allows a spouse to give up their rights to their home in a simple way, using specific language in a deed. This doesn’t give up other protections, like protection against creditors, and doesn’t affect other inheritance rights. It became a law on July 1, 2018. Homestead rights protect a surviving spouse from…
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Failure to Deliver: The Problem with Pocket Deeds and a Review of Alternatives
A “pocket deed” is a deed that is not actually given to the person it’s meant for until the person who owns the property dies. The problem with this is that if the owner dies before giving the deed, the transfer of property is not valid. Both the delivery of the deed and the acceptance…
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The Uniform Partition of Heirs Property Act: A Solution in Search of a Problem
The Florida Bar Journal recently talked about the Uniform Partition of Heirs Property Act (UPHPA), saying it’s better for heirs’ rights. But Florida’s current probate law already protects those rights. The UPHPA may cause more problems than it solves. Florida law allows property to be divided and sold fairly. So, the UPHPA may not be…
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Preemptive Rights and Wrongs: First-Refusal and First-Offer Rights
Boris, the owner of Mallchester Mall, wants to add a clause to the All Brands USA lease giving them first dibs if the mall is sold. This might not be possible because the store is part of the mall, not a separate building. But Boris really needs the lease signed so he can refinance the…
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Full Disclosure: The Unexpected Ambits and Annals of the Adequate Disclosure Doctrine
Florida law favors transparency in the administration of trusts, which means trustees have to regularly update beneficiaries on the trust. Trustees are protected from being sued for breaking the rules as long as they tell the beneficiaries what’s going on with the trust, but it’s not always clear what counts as “adequate disclosure.” Recently, a…
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Creating Vertical Subdivisions for Fun and Profit
Vertical subdivisions are when separate parcels with different uses are stacked on top of each other in one building. They are becoming more common in Florida as the state gets more urban. Developers might choose this type of project because it can make the different parts more valuable when they are all put together. For…
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Fiduciary Duty: A Foundational Tenet Trending Back Into the Forefront
In the next 15 years, a lot of older people in the U.S. will pass on their money and assets to their families, which will be the biggest transfer of wealth ever in the country. Most of this money is owned by people over 60 years old, and they are expected to pass on $4.1…
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Taking the Quick Out of Quitclaim Deeds
The Dingle v. Dellinger case is a reminder for attorneys to be careful when preparing transfer deeds for real estate. In this case, the attorney made a mistake in the deed, and the people who were supposed to receive the property sued the attorney for negligence, even though they weren’t the attorney’s clients. This case…