Celia Ellen Deifik
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Naples Real Estate Law Blog

Florida commercial leasing: broad challenges and opportunities

Florida commercial leases trip up many a landlord and many a business tenant. Here's an important point regarding one of many stark differences between a residential and a commercial lease: Commercial lease tenants are accorded fewer consumer protections if things go wrong down the road.

And the reason why is clear: In assessing the negotiating skills of individuals engaged in residential transactions versus business professionals involved in real estate deals, legislators who draft statutory laws addressing lease matters "assume that business people are more knowledgeable."

Yes, but do they know the intricacies of Florida non-residential landlord tenant law?  Business professionals relocating from other states may not be familiar with Florida's laws.

Florida commercial real estate transaction goes wrong; malpractice alleged

Real Estate Litigation -- nobody wants to be there but sometimes it's the only answer. Large-scale real estate transactions in Florida can go sour for any number of reasons, ranging from allegations that a party has failed to perform to claims of fraud, breach of contract, survey and title problems, the list is endless.

http://www.naplesrealestatelitigationattorney.com/2016/11/youve-got-a-real-estate-dispute-how-do-you-optimally-resolve-it.shtml

Here's the central claim in one failed land deal that was recently advanced by one irate investment company in Fort Lauderdale: legal malpractice.

Select Florida foreclosures -- Here's something disturbing.

FORECLOSURE OF REVERSE MORTGAGES. Some lenders impose rules that are not fully explained to elderly borrowers. This problem is compounded as people age in place and become less likely to carefully read all the mail they receive.  Sometime that mail requires prompt response or dire consequences can flow.  Some borrowers have found a few lenders' attitude is: You live in your house until, well, we contend that you don't live in your house.

And our contention shifts the burden of proof upon you to demonstrate to a court that we're wrong.

DEPOSIT FORFEITURE OR RECOVERY and Real Estate Litigation

Real Estate Litigation often arises from disputes over forfeiture or recovery of deposits under real estate Purchase and Sale Agreements.

"WILL I LOSE MY DEPOSIT?" Buyers ask.

"CAN I KEEP THE DEPOSIT?" Sellers ask.

Buyers often think that only their initial deposit in escrow is at risk if they can't close. However, some contract forms, notably some of the FR-BAR (aka FAR-BAR) agreements such as the "As-Is Residential Contract for Sale and Purchase," commonly used throughout Florida, put ALL deposits, paid and unpaid, AT RISK. They provide that: "All deposits paid or agreed to be paid, are collectively referred to as the Deposit." The Buyer Default provision says that if Buyer defaults, "the Seller may elect to recover and retain the Deposit" as agreed upon liquidated damages. This means that Seller would be entitled not just to the deposit placed in escrow, but ALSO to additional deposits called for but not yet made.

FLORIDA HOMESTEAD

Florida HOMESTEAD is frequently misunderstood and under-utilized by many Florida citizens, perhaps because people come from states which have nothing similar. There are three separate aspects to FL homestead:

•a. Exemption from Creditors

•b. Restrictions on Alienation (owner's ability to convey or devise real property)

•c. Tax Exemptions and Benefits -(includes portability)

So many clients wrongly presume that the real property tax exemption is all there is to homestead...

Condo documents, amendments: key to examine re any dispute

It's hardly unimaginable for disputes to occur with regularity -- even numbing frequency -- in a planned residential community in Naples or elsewhere in Florida. The sources of acrimony leading to argument and, sometimes, legal disputes -- between neighbors, between property owners and directing boards, between elected condo association members and so forth -- are myriad in any community where many residents dwell and a panoply of rules and regulations govern their conduct.

Rules and regulations ... articles of incorporation ... by-laws -- these and other formal contracts and documents all centrally play a role in fleshing out the essentials relevant to condominium establishment and governance. When there is a problem that rises to a legal level, proven real estate attorneys quickly turn to a close perusal of what has been negotiated and put into writing.

Long trail of Real Estate Disputes targeting HOA management

Well, this tale is sure to rile up just about any individual in Florida or elsewhere across the country who lives in a homeowner or condo association often also referred to as "community associations,"

Summed up in a nutshell, here's the story's bottom line: A former Army veteran who lost his leg in a combat zone in the Middle East is now fighting a new nemesis in Georgia. Namely, that is his HOA, which has fined him thousands of dollars and placed a lien on his property.

{The State of Florida provides information on HOAs and condos online at:

http://www.myfloridalicense.com/dbpr/lsc/homeowners.html

http://www.myfloridalicense.com/dbpr/lsc/index.html}

Read on concerning the Georgia veteran...

 

Real Estate Purchase and Sale - Open Permits

Open Permits (also referred to as Unclosed permits) are a continuing source of aggravation for Vendors (Sellers) and Purchasers in both the residential and commerical real estate market.  This occurs when a contractor has done work but failed to call for the County or municipality final inspection and therefore, failed to close the permit.  This is often discovered at the time of sale. Often, the Seller has no idea that the permit is still open. The Seller may have paid the contractor in good faith, believing the work to be fully completed. The contractor may now be long gone. The Buyer doesn't want to deal with an unclosed permit and the expense of satisfying the County. Tempers flare, deals blow up.

Click to hear an interview with Ms. Deifik about open permits and possible legislation to cure problem:

https://www.youtube.com/watch?v=HUlcmoOOJhA

Florida Supreme Court in the fray on foreclosures

Yes, the November 2016 ruling in Bartram versus U.S. Bank N.A. will have far reaching consequences. Of course, every ruling from every state's highest tribunal is always noteworthy and weighty, with Florida hardly being excepted.

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