Phone: 727-397-5571

Perspectives on Florida Law
June, 2012

Home Inspection Checklist - by Dennis R. DeLoach, Jr. Esq.

If you are purchasing a home, the home should be checked out by using the checklist below to avoid legal and maintenance issues:

  • Seawall.  If the home has a seawall it should be inspected by a qualified seawall inspector if you suspect any problems.
  • Sprinkler system for lawn.  The sprinkler system and pump (if there is a one) should be inspected by a qualified inspector to make sure it is working properly.
  • Pool.  The pool should be inspected (particularly if it is an older pool). The pumps and filters should be inspected to see if they are in good working order and the marcite to see if the pool needs to be re-surfaced.
  • Security system.  The security system should be checked by the company providing same.
  • Garage door.  If a door opener is installed it should be examined and tested.
  • Roof.  The roof should be inspected by a qualified roof inspector. If you suspect any leakage such as repainting or stains on the ceiling it could be a big problem. Inspection of the roof is a must.
  • Appliances.  All appliances should be checked. Newer appliances are computer driven and simple things like a bad thermostat can lead to very expensive repairs.
  • A/C-Heating.  These units should be checked by a qualified A/C-heating serviceman or inspector.
  • Termites.  A termite inspector should check for any termite damage or existing termites.
  • Cracking.  If you see any cracks in the outside wall (if it is a concrete home), have this inspected by a sinkhole inspector. This could be a substantial problem.
  • Insurance certificate for Wind/Storm.  Inquire from the prior owner if a proper insurance inspection has been made on the home for wind/storm and obtain a copy of same.
  • Flood Insurance Certificate.  Beach waterfront property on stilts may require a flood insurance certificate.
  • Survey.  If you are not sure where the property lines are, then you should get the property surveyed to make sure there are no encroachment issues.
  • Caveat.  Even though in today's market homes are selling for less money than many years ago, money spent on inspections in today's complicated market is a must.

Money spent on the above inspections, could be one of your best protections when purchasing a new home. All inspections should be done within the contingency period set forth in the normal real estate contract.

If you have any questions concerning these issues, before or after closing please contact DeLoach and Hofstra, P.A.


WHAT IDENTIFICATION DO I NEED TO BRING TO MY REAL ESTATE CLOSING? - by Peter Hofstra, Esq.

At a real estate closing, many documents are executed by the seller and buyer. A substantial number of the documents must be notarized by a notary public.

Section 117.05(5) of the Florida Statutes provides that a notary public may not notarize a signature on a document unless he or she personally knows, or has satisfactory evidence, that the person whose signature is to be notarized is the individual who is executing the instrument.

It is highly unlikely that you will personally know the notary public at your closing, therefore, you must provide the notary public with at least one of the following forms of identification:

  1. A Florida identification card or driver's license issued by the public agency authorized to issue driver's licenses;
  2. A passport issued by the U.S. Department of State;
  3. A passport issued by a foreign government if the document is stamped by the United States Bureau of Citizenship and Immigration Services;
  4. A driver's license issued by a public agency authorized to issue driver's licenses in a state other than Florida, a territory of the United States, or Canada or Mexico;
  5. An identification card issued by a territory of the United States or a state other than Florida;
  6. An identification card issued by any branch of the armed forces of the United States; or,
  7. An identification card issued by the United States Bureau of Citizenship and Immigration Services.

We highly recommend to our clients that they obtain a Florida identification card if they no longer possess a driver's license.


Mediation and Arbitration - by Paul Cavonis, Esq.

Mediations and arbitrations are useful tools to resolve civil disputes. While they are used to accomplish the same goal (i.e. resolve a dispute), they have very different procedures. Despite these differences, they are often confused with each other. This article will explain their differences and how each is used.

Mediation is a formal settlement conference between parties to a civil dispute. The parties are typically represented by counsel during the mediation process. The distinguishing characteristic of mediation is that the parties are in control of the terms of a resolution. Stated another way, unless both parties agree to the terms of a settlement, no resolution is reached. This control is what makes mediation so appealing and less intimidating than other forms of dispute resolution.

Mediation can take place either before or after a lawsuit is filed. One advantage of mediating a dispute before a lawsuit (called pre-suit mediation) is the savings realized in attorney fees and costs. One disadvantage to pre-suit mediation is that the parties may not have exchanged sufficient information to allow them to make sound, informed decisions about a settlement.

A mediator presides over the mediation. The mediator is typically, but not always, someone who has experience with the type of dispute being mediated. For example, in my practice, I use attorneys who have experience in the personal injury field when I am mediating an injury claim.

The mediator first meets with all the parties and their counsel in a general (sometimes called joint) session. In this session, the mediator explains the process and rules governing the mediation.

One very important rule is the rule of confidentiality which prohibits participants from disclosing the mediation discussions to third parties.

Frequently, after the general session, the parties and their respective attorneys split into separate groups and meet with the mediator privately. These private sessions are called caucuses. The mediator will go back and forth relaying offers and counteroffers.

If the parties reach a resolution, a formal settlement agreement is signed by the parties and their counsel. The settlement agreement is a binding contract which can be enforced like any other contract.

Statistically, most cases that are mediated after a lawsuit is filed settle at mediation. If no settlement is reached, the mediation "impasses". This means no settlement was achieved and the parties are free to pursue another resolution to the dispute.

Arbitration

Arbitration is similar to a court trial. An arbitrator (or panel of arbitrators) considers the evidence presented by the parties and makes a decision on the merits of the case. In this way, the arbitrator acts like the judge or jury in a trial.

Arbitration is typically conducted before a lawsuit. Often, arbitration is required before a party can file a lawsuit. For example, many condominium disputes must be arbitrated before a lawsuit is filed.

The parties to an arbitration present evidence much the same way evidence is presented at a trial (e.g. witness testimony and introduction of documents), although the rules regarding admissibility of evidence may be relaxed.

The distinguishing feature of arbitration, as compared to mediation, is that the parties do not control the outcome. A decision is made for the parties by the arbitrator. The decision of the arbitrator may be binding or non-binding. If the decision is binding, the parties must abide by the decision. If the decision is non-binding, the parties are free to pursue another resolution to the dispute through a lawsuit. This is called a trial de-novo ("anew").

Advantages to arbitration include cost savings; ease of scheduling to accommodate the parties and their counsel; speedy resolution; and the ability to select an arbitrator who has special knowledge about the issues involved in the dispute. Disadvantages include increased costs if one of the parties to a non-binding arbitration pursues a trial de-novo and the general lack of a right to appeal a binding arbitration decision.

In summary, both mediations and arbitrations are useful tools to resolve disputes. However, there is no "one size fits all" approach when deciding when and if they should be used. Every case is different and requires a thoughtful analysis of the advantages and disadvantages of each.


VA Benefits to Help Pay for Healthcare - by "Rep" DeLoach, Esq.

Part of our elder law practice includes accessing government benefits to assist with our client's healthcare costs. Assisted living, in-home care and other medical costs can get very expensive as we age and the government may be of assistance at times.

One source that may assist our clients is the Veterans Administration and their pension program. Generally known as "Improved Pension Benefit" or "Aid & Attendance", this benefit helps to pay for extraordinary medical costs, which can include doctor's bills, hospital visits and medicines, for the elderly veteran and/or spouse. This program can provide a great deal of safety to our aging population. Importantly, the VA Pension program can help a veteran stay at home longer or can provide care to keep the veteran (and/or spouse) in an assisted living facility or nursing home.

In order to receive money from the VA, the veteran, or his or her surviving spouse, must generally meet the following requirements:

  • An honorable discharge as shown through discharge papers;
  • Significant medical costs such as assisted living or in-home care;
  • Assets must meet an asset level test based upon age;
  • The veteran must have served ninety (90) days of active duty with at least one (1) day during a time of armed conflict:

World War II                         Dec. 7, 1941-Dec. 31, 1946

Korean Conflict                  June 27, 1950-Jan. 31, 1955

Vietnam War                         Feb. 2, 1961- May 7, 1975

The VA Pension program (including "Aid and Attendance") can provide cash assistance ranging from $1,000 to $2,000/month, depending on a variety of factors.

As part of our life care planning practice, we consider one's eligibility for VA benefits when the client needs to stay in assisted living.  The amount received will help our client stay in a less restrictive setting longer than a client with Medicaid benefits that are generally more difficult to access.

The goal, in our office, is to combine proper estate planning with all eligible government benefits, such as Medicaid and VA Benefits, to enable our clients to have the best care in the most appropriate setting and to ensure that care lasts as long as it is needed.

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