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Perspectives on Florida Law
When You Need Help - October, 2012

Please VOTE!!!

The right to vote is perhaps the greatest gift our forefathers bestowed upon us. Countless Americans have sacrificed their lives and liberty to preserve this right.

The staffs and management of DeLoach, Hofstra & Cavonis, P.A. and Seminole Title Company urge you to exercise this most precious right. Please vote for the candidates of your choice.

 


Premises Liability - Part 2- Paul R. Cavonis, Esq.

Last month we began a discussion about premises liability. To recap, "premises liability" is a general term used to describe a variety of incidents involving an injury occurring on property.

A property/business owner owes two duties to those who are legally on the property. First, there is the duty to maintain the property in a reasonably safe condition. Second, there is the duty to warn of any latent or concealed hazards that the owner knew about or should have known about. Note that the above duties apply when someone is legally on the property. For example, guests in your home or customers in your place of business are legally on the property and are owed the above duties. Since the above duties apply to those who are legally on the property, the general rule is that they do not apply to trespassers. The "attractive nuisance doctrine" is an exception to this rule.

Broadly speaking, the attractive nuisance doctrine imposes liability on a property/business owner when a trespassing child is lured or attracted to the property by a condition which causes an injury to the child when: the condition is inherently dangerous; the property/business owner knew or should have known the condition is in a place where children will likely trespass; the child does not discover the condition or realize the danger because of the child's age; the property/business owner fails to exercise reasonable care in removing the danger or protecting the child; and the burden of eliminating the danger is slight compared to the risk to children.

Examples of an attractive nuisance include a house under construction (e.g. stacked cinder blocks, pile of sand and stack of lumber); abandoned or discarded refrigerators, washers, dryers or similar airtight boxes, a swimming pool or other artificial body of water where they are constructed in way as to constitute a trap or where there is some unusual element of danger; and derelict playground equipment.

The age, knowledge and experience of the child are important factors to consider.  For example, a 14 year old who works part time at his families' appliance repair business will appreciate the danger of a discarded refrigerator, where a 6 year old will not. If the child discovers the dangerous condition or appreciates the danger, the attractive nuisance doctrine does not apply.

Using common sense goes a long way in keeping property safe. If the initial reaction to a condition is one of concern that it might pose a unreasonable danger, it probably should be corrected.


Your Durable Power of Attorney - by "Rep" DeLoach, III, Esq.

Planning for you incapacity is an important part of getting your legal affairs in order. In the event you became incapacitated, you need to make sure the appropriate person can make your legal and healthcare decisions for you. Perhaps the most important way to prepare for your incapacity involves creating an effective durable power of attorney.

A durable power of attorney designates a trusted person, such as a spouse or children, to make your legal and financial decisions. This document can give a trusted individual the power to pay your bills, manage your property, protect your assets and much more. We do not always know how a power of attorney will be helpful, but we know it is invaluable in the correct situation. Without a power of attorney, a family will typically need a court ordered guardianship to manage affairs. A typical guardianship is expensive, time consuming and avoidable in most situations.

Importantly, not all powers of attorney are created equally. The power of attorney rules are extremely complicated and we frequently deal with families who have planned poorly, sometimes through no fault of their own. To assist our families in making the correct decisions, we offer the following general guidelines regarding your durable power of attorney:

  • Powers of attorney should be updated every 5-10 years. One reason, among others, is that banks and other financial institutions do not like powers of attorney and are more likely to honor a newer document.
  • Do NOT get your power of attorney from the internet or other store bought forms. Florida law is extremely complicated and you need a good estate planning attorney to create your document. We frequently see form powers of attorney that are ineffective for a variety of reasons.
  • Name the correct person as your agent. A power of attorney is the power to steal. Of course, the power of attorney cannot legally steal from you but an untrustworthy agent can create a lot of problems.
  • Keep your original power of attorney in a safe place. A power of attorney may not be effective unless you have the original.
  • Name an alternate agent(s) in case your nominated agent cannot serve.
  • Power of attorney automatically terminates on your death. Your named agent cannot act for your benefit once you are deceased.

If you have any questions regarding your power of attorney, or your estate plan, please give us a call. There is no doubt that good planning can make things easier for you and your family.


Foreign Investment In Florida Real Estate - Part 1 - by Dennis R. DeLoach, Jr., Esq.

According to a recent study by Florida Realtors, 19% of the total residential sales volume was by foreign investors. By foreign investors, we are referring to individuals who have another Country as their primary residence and are purchasing a second home or other real estate in Florida.

Methods to hold title:

It becomes prudent to evaluate the methods by which said individuals may own title to Florida real estate, and the advantages or disadvantages of various ownership alternatives. Through this series of articles, we will be evaluating ownership in a person's individual name, ownership through a Florida Living Trust, ownership through a Florida corporation or a Florida Limited Liability Company.

 

Ownership in a person's individual name (Direct Ownership):

The simplest way for a foreign investor to purchase real estate in Florida is in her or his individual name. This avoids the cost of creating a living trust and transferring the property thereto, or the cost of creating and maintaining a domestic corporation or limited liability company.

 

Tax consequences of any type of ownership:

Regardless of the type of entity by which a foreign investor elects to hold title, said individual should seek independent counsel and advice pertaining to income tax and estate ramifications in both the United States and the individual's country of residence.

 

Probate issues - Direct Ownership:

If a foreign investor dies owning Florida real estate, and if his primary residence is in a country other than the United States, title to the Florida real estate can be passed through a probate process following the procedure of using the individual's Last Will and Testament from his country of origin. In legal terms, this probate process is called an ancillary administration.

 

How can probate be avoided?

One of the simplest ways for a foreign individual to own title to Florida real estate is to create a Florida Living Trust and have the real estate transferred to said trust. Upon the death of the foreign individual, the successor trustee could transfer title to the real estate in accordance with the wishes of the deceased. This is a very good way for title to be held.

 

Future articles:

In future articles we will discuss how title to real estate can be held by foreign individuals using a Florida Corporation or a Florida Limited Liability Company.

The law firm of DeLoach + Hofstra, P.A., is very knowledgeable concerning all aspects of the creation of living trusts for the purposes expressed in this article.

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