Pohl & Short, P.A.

Winter Park Home Magazine Issue 3 2013

Mary Smith contacted me to assist her in the sale of a vacant lot owned by both Mary and her son, Michael. Mary originally went to a local title agency and was advised that she cannot complete the sale because her son is a minor – i.e., under the age of 18 years. Mary owns a 50% interest in the property, and her 17 year old son, Michael, owns the remaining 50% interest. They have a Buyer ready to purchase the lot for $25,000.00.

Frequently, general contractors will work with the same subcontractor or supplier on two separate, unrelated projects. When that happens, the situation may arise that on the first project (Project A), the subcontractor defaults on its contract, resulting in a back-charge that exceeds the subcontractor's contract balance, i.e. the subcontractor owes the general contractor money.

In previous issues of this magazine, I covered the use of a Power of Attorney (a “POA”) in real estate transactions for those situations in which a party (the “Principal”) is not available to sign documents at a closing and appoints a third person, known as the Attorney-in-fact (“AIF”), to sign on his or her behalf.

At a real estate closing, the closing agent has multiple responsibilities, and must rely upon the cooperation of the parties to complete his duties. He or she must determine that all title commitment requirements have been satisfied, that all documents are properly executed, that all parties have provided appropriate identification, and that funds provided for the closing have cleared – all of which must be resolved prior to disbursing proceeds and recording the documents.

Restrictions imposed by a Developer on subdivided/platted land are generally entitled Covenants, Conditions, Restrictions and Easements (“Covenants”).

Many individuals purchasing real property expect that they have the right to use the land without interference from their neighbors. However, that right is limited both by local governmental regulations and any recorded restrictions imposed on the property. This article addresses private restrictions.

This article addresses the proper format for the execution of a document by the Attorney-in-fact, and introduces the use of a statutory form of Power of Attorney known as a Durable Power of Attorney.

Occasionally clients say that they cannot be present for a real estate closing, and ask if they can sign their documents in advance. Depending on the circumstances, particularly if the individual is the Seller, the closing agent may be able to accommodate this request and have the documents signed prior to the actual closing date.

There are three principal ways in which individuals acquire ownership in real property–as tenants by the entireties, as joint tenants with rights of survivorship, or as tenants in common.

Clients frequently ask how they can protect themselves when they enter contracts for home improvements projects.

With more project owners demanding the use of Building Information Modeling (BIM), project delivery is necessarily carried out through greater contributions of design input by the general contractor and the major trade subcontractors. The design professionals are no longer the sole authors of the project design. This collaborative project delivery method has been called integrated project delivery (IPD).

In prior articles the author has explained that assets owned by both husband and wife cannot be attached or sold to satisfy a creditor of only one spouse. Marital assets are protected in the State of Florida unless the creditor can show an obligation of both husband and wife.

Minority shareholders of corporations are not powerless in their efforts to monitor the financial activities of the majority shareholders or the officers of the corporation. On the contrary, complete and full disclosure of financial activities of the corporation is mandated by the Florida Statutes.

The Florida Legislature and the Florida Evidence Code promote settlement of business disputes. In an effort to foster the settlement process the Florida Evidence Code specifically provides that settlement offers are inadmissible is subsequent litigation.₁

Florida, as well as other states created by statute, corporate entities to shield owners from personal liability in order to promote trade and commerce.

In a paperless environment parties often execute contracts and submit governmental paperwork via the internet and other electronic media. Original signatures gave way to faxed signatures and now electronic signatures are an accepted method of execution.

In the recent heated real estate environment, buyers went to great lengths to purchase property with the intent to flip same and make incredible profits.

There appears to be a misconception that a deposit must be made by a buyer of real estate to seal the deal. The Standard Contract for Sale and Purchase often requires a deposit be paid, however, the failure of the buyer to deliver the deposit does not render the contract unenforceable.

Real property in Florida is subject to the Marketable Record Title Act

A lis pendens is a recorded document describing real property that provides notice to all the world of a dispute.

There has been an explosion of home building in Central Florida.

Foreclosure actions are routinely filed by banks against homes if the borrower defaults in payment. Homeowners can also be subject to foreclosure actions for failure to pay homeowner’s association dues, assessments or mechanics liens.

If you miss a lease renewal deadline consult an attorney.

A standard business loan often requires an owner to execute a guaranty. Before signing a guaranty legal advice should be obtained regarding the ultimate financial exposure.

There has been an explosion of employee lawsuits concerning sexual harassment. If you want to improve your chances of defending such a case you must be proactive.

An employer with a business has much to lose if a dissident employee sets up a competing company.

Recently I was asked to research whether or not a homeowner’s association could prevent its members from using the street in front of their houses as a parking lot. Several homeowners in the subdivision routinely parked in the roadway which presented an obstacle to traffic and otherwise decreased the aesthetics of the neighborhood.

Bank officers routinely meet with borrowers to talk about troubled loans. The banker and the borrower oftentimes leave the same meeting with divergent views regarding the parties’ obligation and agreements. The bank’s subsequent attempt to enforce its loan documents may invite retaliatory lawsuits.

There has been a proliferation of protective strategies employed by various industries in order to safeguard their members. One device has been to adopt an arbitration provision which requires the unwitting customer who signs a contract to participate in binding arbitration with a panel composed of other like-minded industry representatives.

The housing market has boomed in recent years in Central Florida. New home construction has strained the capacity of local builders, laborers and material suppliers. Litigation concerning faulty design or construction methods respecting homes is likewise on the rise.

The Florida Legislature has enacted statutes which limit the time that a party may bring a lawsuit to recover damages related to construction. Specifically, 95.11(c) applies to any action founded on the design, planning, or construction of an improvement to real property.

If you are a homeowner in Florida, you will no doubt have occasion to contract for repairs or improvements to your property. You should know that the Florida lien law provides homeowners certain protections and also provides particular warnings to help homeowners navigate payment of multiple bills often from unknown suppliers, subcontractors and laborers.

The public has a general view that once a judge has rendered his decision and a final judgment is entered the case is over. However, in the event that the plaintiff prevails and is awarded a money judgment or either the plaintiff or defendant prevails and is awarded attorneys fees a second part of the case involving collections is required.

A corporation deep in debt often will try to eliminate liability by merely incorporating under a different name. In many circumstances the law will allow creditors of the defunct corporation to recover from the new corporation.

I am often confronted with a dismayed employer who has realized that a trusted employee has stolen and embezzled substantial sums of money.

In the current construction climate builders often dictate the terms of a construction contract. For some large builders form contracts are the norm. However, smaller contractors often negotiate the terms and don’t rely on form contracts.

In the ordinary real estate transaction, the buyer expresses his interest in a property by executing a contract. One routine provision is to require the seller to put up a good faith deposit.

Once a husband and wife are married in the State of Florida the law recognizes a separate and distinct entity for property owned by husband and wife.

There is a significant hidden federal tax lien that may attach to real property conveyed by a foreign Seller. It may not turn up in a search of the public records and, ultimately, impose an obligation on the Buyer to pay a portion of the Seller’s income tax obligation.

Clients frequently raise the issue of a property survey. The question is almost always the same. “Do I really need a survey for this property or am I just throwing money away on an unnecessary exercise?”

Trusts can be tricky. Consider the case of a man who turned to me when he ran into a huge obstacle that derailed his efforts to obtain a mortgage from a local bank.

As a Winter Park homeowner, you are undoubtedly going to be contracting for repairs or improvements to your property from time to time. For small jobs involving a single tradesperson or a company that performs all facets of the work, the process is usually pretty straightforward. The company does the work and you write a check for the agreed to contract price.

A potential client (who I will refer to as Ann) recently asked me to handle the closing on a property that she owned with her aunt, who had died two months earlier. Ann had already signed a contract to sell the property and was looking forward to a problem free closing.

Protecting your rights as a buyer through specific performance

Everybody loves to save money. Surprisingly, the Florida constitution and statutes provide an excellent opportunity to own your home and save property taxes at the same time.

The early settlers used to homestead land by building a home, and staking the land boundaries. In present day Florida, we do things differently. To homestead property we first purchase the property, which has already been staked, and then we move in. If only this was all there is to the concept of homesteading, a word that is the source of more questions, and more confusion, than any other in Florida real estate law.

What you may find, though, is a letter in your mailbox from an individual who owned your property 40 years ago, informing you that he not only owns the mineral rights below the surface of your land, but also, that he has the rights to dig on your land for those minerals (called rights of entry). This letter may go further on to state that for a mere $800 he will release those rights of entry in your favor. Could it happen here? Let’s look at some facts...

The Florida peninsula is bordered on the East by the Atlantic and on the West and South by the Gulf. Together with its rivers, and approximately 30,000 lakes, Florida truly is a land where there is “water, water everywhere.” People frequently ask me who owns these different bodies of water, whether the general public has an unlimited right to use them for recreational purposes, how to access them, and the rights of the landowners abutting them.

In many ways, wills are difficult and frustrating. There are many hard decisions to be made in distributing an estate, and people generally prefer to put off those decisions because they inherently address the finite nature of our existence.

Jeremy, who owns a home and two investment properties, told me he had remarried, and asked that we revise his will to provide for his new wife, Emily.

One key element of land ownership often taken for granted is the ability to access the property through the public road system. Imagine buying a house as an investment, and finding out later that it does not have legal access.

Real estate transactions don’t have a required format, even though that perception is often implied due to the extensive use of the standard Florida Association of Realtors and Florida Bar Association (FAR/BAR) approved Contract for Sale and Purchase of real estate.

Except for transfers by gift or inheritance, a Real Estate Purchase and Sale Agreement, or Contract, is the primary tool used to acquire real property. The Contract defines the purchase price, deposit amount, costs, and all relevant terms by which the Seller agrees to transfer the property, and by which the Buyer agrees to be governed. Under Florida law, these Contracts must be in writing to be enforceable. This article highlights certain salient provisions of these Contracts.

Real estate transactions don’t have a required format. Although, residential real estate contracts typically include provisions that address the physical condition of the property. Not only does Florida law require that the Seller disclose any inherent problems with the property, but the contract should also provide the Buyer with ample opportunity to inspect the property for termite damage and the overall condition of the home.

This article points out some of the differences and benefits of these two types of deeds, while detailing the parameters of the Special Warranty Deed that is also used in conveying real estate in Florida.

In today’s real estate marketplace, many purchasers are reconsidering their offers, deciding to terminate their contracts, and seeking a return of their escrow deposit. These situations not only require a determination concerning the rights of the parties to enforce the contract provisions, but also often result in disputes over who is entitled to receive the earnest money deposit. Consider the following examples.

Short sales reflect the current downturn in real estate valuations - they are real estate closings in which there are insufficient sales proceeds to pay off the outstanding liens and closing costs of the seller. They typically occur because the outstanding balance due on a mortgage is greater than the current market value of the property.

As true as the expression “good fences make good neighbors” may be, fence encroachments can create significant friction between neighbors. Relocation of an encroaching fence, or a properly drawn fence line agreement can settle issues that may otherwise be unresolved for many years. In these situations, each neighbor should retain their own legal counsel to address the issues and available solutions.