Common Questions About Florida Law
It is natural to have many questions and worries when faced with a legal issue or litigation. The experienced lawyers at DeLoach, Hofstra & Cavonis, P.A., ask many common legal questions and provide useful answers to help get you in making the best decisions for you and your family.
- Page 1
What is a fiduciary? Who should act as my fiduciary?
When you are planning for your death and incapacity, one of the first questions is who would be your fiduciary? Your fiduciary is one of the key decision-makers in any estate plan, and the potential roles include your successor trustee, personal representative (i.e. your executor), your attorney-in-fact (your power of attorney) and your designation of health care surrogate.
What is a fiduciary?
A fiduciary is a trusted person or institution that can act for you upon your death or incapacity. A fiduciary is held to the highest standard of trust in the legal world. For estate planning purposes, your fiduciary roles can be separated out in three different ways. First, you need a fiduciary to handle your affairs upon your death, who would be a successor trustee and personal representative. Second, you need an attorney-in-fact to handle your financial and legal affairs if you become incapacitated. Finally, you will need a health care decision maker if you are unable to handle your medical decisions. Often, the same person can serve in all of these roles.
Who should act as my fiduciary?
First, you must trust the person you name in any role. There is no better way to create problems in your estate plan than to name an untrustworthy person. After that, the person you name should be able to act if needed. Someone who lives out of state, for instance, may not be a great choice if you have a trusted local person. Finally, you must trust this person’s ability to run your affairs. The person you name should have the financial and emotional ability to handle difficult situations in being your advocate.
What if I do not have any children or family?
While most people look to family fiduciaries, this is not possible for everyone for a variety of reasons. If you do not have a trusted family member who is able and willing to assist you, some estate planning attorneys serve as fiduciaries. If your estate planning attorney will not do this for you, he or she may know professional guardians and banks who could help you in the event of your death or incapacity. As an elder law attorney, our law firm serves in this role for some clients.
What Makes an Asset Go Through Probate Upon Death?
Most people know that when they die, they want their assets to avoid the probate process. Most people do not even know what probate is, but they know they want to avoid it. But what is probate and, even more important, when do assets go through probate in Florida?
First, probate is the court process to properly settle your estate upon your death. The probate process was created to make sure the decedent's taxes are paid, legally enforceable bills are paid, and assets go to the right people (i.e., their heirs). Their are four types of probate in Florida, each applying in very specific situations. The four types are:
- Formal Administration: A typical "probate" process where the court appoints the personal representative (i.e., "executor") to settle the estate.
- Summary Administration: A shorter and more simple form of probate when assets are less than $75,000 and all of the decedent's bills are paid (among other matters).
- Disposition without Administration: Not really a probate, per se, but a simple way for a family member or other person to get paid for last funeral costs.
- Ancillary Administration: When the decedent was not a resident of Florida but owned real property here.
We have more on the types of Florida probates here.
Let's get back to the question posted - what makes an asset go through probate in the first place? Probate assets are assets that were either:
- In the decedent's own, individual name upon their death; or
- Did not have a beneficiary designation upon death.
Assets in the decedent's own, individual name would be just about anything - bank accounts, stocks, bonds, brokerage accounts, real property (i.e., land), and more. When someone dies with these assets, no matter what the value, the family/heirs will need to look to one of the processes above in order to take control of the asset.
If someone had a life insurance policy, IRA, 401k, etc., that did not have a beneficiary designation, that asset would also be subject to the probate process.
Example of Probate Assets:
Mom dies with a bank account and her homestead property, both in her individual, individual name. The family/heirs will need to see a probate attorney to gain control of the bank account and to sell the home.
Where are Probate Assets Distributed?
Probate assets are distributed according to the decedent's last will and testament, if they have one, and if not, then according to the laws of intestacy.
What Should I do to Avoid Probate?
There are a number of ways to avoid probate with your own estate plan. If you want to learn more about how to avoid probate, please download a copy of my book, The Top 20 Rules to Protect Your Florida Estate.
If you want to learn more about probate:
- Do I need to hire an attorney to probate a Florida estate?
- Does probate have a small estate affidavit?
- Download our free book, Navigating the Florida Probate Process!
What Are Some Pet Laws in Pinellas County?
Whether you are taking a trip to the veterinarian or are just out for a ride, pet owners often transport their animals in and out of cars. In an effort to protect both pet owners and their four-legged friends, Pinellas County created laws to ensure the safety of animals. Here are a few:
What does the law say about the transportation of my pet?
Most people don’t know this, but your pet must be safely enclosed in the vehicle or protected by a container, cage, cross tether, or another device, which would prevent the animal from falling, being thrown, or jumping out of the motor vehicle in Pinellas County.
Is it illegal to leave my pet in the car?
When the temperature outside reaches 85 degrees Fahrenheit, the temperature inside a car can climb to 120 degrees in just 30 minutes, so leaving pets unattended in cars on warm days, even for a short time, can cause irreversible organ damage or even death, according to the Humane Society of the United States.
In Pinellas County, an animal cannot be confined or remain unattended in a vehicle in conditions that would endanger the well-being of the animal due to lack of ventilation or water, heat, or any other condition that pain and suffering, disability, or death to the animal is expected to occur.
If I can’t leave my pet in the car, can I restrain it outside?
No, in Pinellas County, it is unlawful for a person to tether, fasten, chain, tie, or restrain a dog or cat to any stationary object, unless it is within the visual range of the owner.
Is there a leash law in Pinellas County?
Yes, the law states, “No dog or cat shall run at large within the county. Any person who possesses, harbors, keeps, or has control or custody of any dog or cat which is running at large shall be in violation, regardless of the knowledge, intent or culpability of the owner.”
For more information on pet laws, visit the Pinellas County Animal Services website.
What are the legal remedies if a resident doesn't pay housing association fees?
All members of a community association are responsible for paying dues and assessments in a timely manner. While Florida law allows a homeowners’ association to take action against a resident who falls behind on payments, there are specific procedures that must be followed—and failure to follow the law can place the association at risk of a lawsuit.
Florida Regulations Allowing HOAs to Collect Fees from Homeowners
Homeowners’ associations (HOAs) often outline the procedures that can be taken against a homeowner in its governing documents, such as suspension of rights or the filing of a lien. However, the governing documents are only enforceable if they're in compliance with state HOA statutes.
Under Florida law, the HOA must:
- Give notice to a delinquent owner. The HOA board must issue a demand letter stating the amount of the outstanding debt and the steps taken if the debt isn't paid. Potential penalties include late fees; suspension of voting rights in HOA meetings; and suspension of use of common areas, such as tennis courts or pools.
- Notify the homeowner before filing a lien. If the homeowner fails to resolve the debt after a demand letter is issued, the HOA may consider filing a lien against the home. Before a lien can be filed, Florida law requires the HOA to provide a homeowner with a written demand for the outstanding amount and permit him or her 45 days to pay the amount in full. Florida law also dictates the charges allowed in an assessments lien, including past due assessments, administrative late fees (up to $25 or five percent of the amount of each installment that is past due), interest on unpaid assessments, and attorney’s fees.
- Notify the homeowner of intent to foreclose. If the matter isn't resolved, the HOA may file a lawsuit to foreclose on the home to collect the assessments. The HOA cannot initiate a foreclosure unless it notified the homeowner with intent to foreclose and allowed 45 days after the notice to settle the debt.
How an Attorney Can Help You Navigate an HOA Dispute
An attorney can be extremely useful when an HOA is having trouble collecting past due assessments. Our community association lawyers ensure the HOA is following Florida legal requirements. We can also:
- Inform owner of violations. Our firm assists with corrective action for homeowners in arrears, ensuring that notifications were issued in compliance with state laws and governing documents. We can also perform collection services for our association clients regarding past-due accounts.
- Tenant collections. If a homeowner rented out the property to a tenant, we enforce delinquent tenant procedures outlined in the governing documents.
- Negotiate between the parties. A homeowner may refuse to pay assessments for a number of reasons, from insufficient funds to the unfair levying of fines. Our attorneys perform mediation and arbitration services, including negotiating an amount for a qualifying offer to satisfy the debt.
- Represent the HOA. If the homeowner doesn't comply with the terms of the qualifying offer or an agreement cannot be reached, the HOA’s foreclosure action may proceed to court. We represent the association in foreclosure litigation and work to remove the owner’s right of possession to the property.
- Prevent future disputes. In many cases, an HOA can avoid costly collection and litigation costs by strengthening its governing documents. Our attorneys examine existing governing documents and bylaws; rewrite vague language or outdated information; ensure that declarations and collection procedures are compliant with Florida law; and advise association directors on available enforcement options.
Our attorneys have over 30 years of experience representing homeowners and their associations through all aspects of their business operations. Whether you need help creating the governing documents of your HOA, or the association is in the middle of a dispute with a member, our experienced real estate attorneys can answer your questions and advise you of your legal options. Simply fill out the quick contact form on this page to set up a consultation.
What is a short sale?
A short sale offers a way for a seller and a mortgage lender to avoid foreclosing on a home. Essentially, the lender agrees to accept less than the full outstanding mortgage price of the house, usually because the seller can't pay or owes more on the home than it's worth. The lender would rather recoup some of its money through a short sale to another buyer than undergoing the expense of repossessing the home in foreclosure.
Before the seller can list a house at less than the amount required to pay off the mortgage, the seller must obtain the lender’s permission. If the property is approved for short sale, the buyer will negotiate a price with the seller before taking that price to the lender.
However, the lender isn't required to accept any offer it believes is too low, even if the seller has accepted it.
What Buyers Should Consider Before Purchasing a Short Sale Home
The first thing to know about short sales is that buyers aren't getting a “discount” on the property. Lenders won't approve a short sale purchase if the lowered price is below market value for the home. Mortgage lenders will consider the comparative market analysis (CMA) carefully to know exactly what the property is worth, and won't hesitate to take the property to foreclosure if it believes it can get a higher price.
Before you tell your real estate agent to include short sale homes in your search, you should:
- Perform a public records search. If you want your purchase price offer to be accepted, the offer needs to be reasonable to the lender. A search of the public records reveals who holds title to the property (there may be more than one holder); how much is owed to the lender; and whether a foreclosure notice has been filed—all of which can help determine the amount of your offer.
- Do your due diligence. Just because buyers aren’t paying the price the seller paid doesn't mean the home is a bargain. There may be a variety of problems with the property, especially if it's sat vacant for some time. Unfortunately, short sales typically sell “as is,” so the lender may not be required to issue a disclosure statement outlining any known problems with the home. Buyers should extra careful during the home inspection process, especially when it comes to looking for roof defects, mold, or termite damage. If the property had renovations, make sure the necessary approvals and permits for the work are on file so the city doesn't take action against you when you're the new owner. If a problem is identified, get an accurate repair estimate—and be honest about your budget so you know when to walk away.
- See if there are multiple lenders. In some cases, the seller may have more than one loan securing the property. Instead of splitting your offer, mortgage lenders often require full payment of their own debt before the next mortgage can be considered. If your offer pays off the primary lender but leaves only a small amount for the second, the second lender may not agree to the transaction.
- Anticipate higher closing costs. While many buyers and sellers compromise on the costs they assume at closing, lenders usually refuse to pay any additional closing fees. This includes pest inspections, transfer taxes, repairs identified during home inspection, and other costs that buyers may have to pay out-of-pocket.
- Plan for closing delays. Everything in a short sale process must be approved by the lender, which can be a long and frustrating process. It takes several weeks or even months just to get a lender’s response on a purchase offer. If you're buying a home at the same time you're selling your current residence, it may be difficult to coordinate the dates, leaving you to assume the costs of temporary residence until you close escrow.
Use Our Expertise to Your Advantage
Remember, in a short sale, agents and lenders are the only ones who stand to make money from the transaction. A real estate attorney with experience in short sales can anticipate problems before the offer stage, working to secure a home that's within budget and aligns with your best interests.
If you have questions about your home purchase, fill out the short contact form on this page to set up a consultation.
What legal documents will I have to sign when buying a house?
There will be many different documents that require your signature before you can complete the purchase of your new home. The specific paperwork varies depending on the exact location of the home, but it's not uncommon to sign 20 or more separate contracts and attestations before the transaction is final.
After long months of waiting to get into your new home, it may be tempting to close the deal and get your keys as quickly as possible.
However, it's important not to rush through the signing process. Each of these documents plays a vital role in your transaction, and you should take the time to read, review, and complete each one before signing.
Home Loan Documents Required to Close Your Mortgage
If you're using a mortgage lender to purchase the property, you'll have two closings: one for the loan and one for the purchase of the house. The loan documents will be prepared by your lender’s agent, and vary by the type of lender and loan you've chosen.
In general, the loan documents required to complete closing are:
- Promissory note. This document outlines the terms of your home loan, including interest rates and monthly payments. When you sign this document, you're making a legally-binding promise to pay back the borrowed amount, plus interest. It also gives the lender the ability to collect the debt, or sell the debt to another lender.
- Loan estimate and closing disclosure. The federal government requires all lenders to provide a “truth in lending” statement to borrowers who are approved for a mortgage. This document shows the amount borrowed, the interest rate, the annual percentage rate, and the total cost over the life of the loan. This allows borrowers to easily see the amount they're responsible for repaying.
- Mortgage. The mortgage is your acknowledgement that the lender will have a lien on your home until your home loan is paid off. When you sign a mortgage, you're agreeing to use the home as collateral for the loan, allowing the lender to foreclose and sell the property if you don't make payments.
- Loan application. You're required to inform the lender if your financial situation has changed—for example, if you have changed jobs or spent some of your savings—before your loan is issued. The lender’s agent will ask you to review your original application, update any inaccuracies, and sign a new copy.
- Monthly payment statement. This document provides a breakdown of your monthly mortgage payment, allowing you to see how much of each payment goes to the principal balance, interest, taxes, and insurance.
Legal Documents Needed to Transfer Ownership of a House
The documents needed to close on a property are usually signed by the seller first, then delivered to the buyer for his or her signature.
Purchase documents for a residential real estate transaction may include:
- Closing disclosure. This document outlines all closing costs for the buyer and the seller. The law requires buyers to have this form at least three days before closing so they can ask questions and resolve any issues before the date of signing.
- The deed. This document itemizes the legal description of the property. Once signed, it's filed with the county recorder of deeds, officially transferring the property from the seller to the buyer. Once the deed is recorded, anyone performing a title search can see that you obtained title legally from the prior rightful owner.
- The bill of sale. The bill of sale lists all property being transferred from the seller to the buyer along with the property, such as furnishings, appliances, light fixtures, satellite dishes, water features, or security systems.
- Seller’s affidavit. The seller is responsible for providing a notarized statement attesting that he or she has rightful ownership of the property being sold, as well as identifying any potential claims on the title, such as outstanding leases, liens, boundary line disputes, or pending sales contracts.
- Abstract of title. The abstract is a summary of the public records related to who may claim ownership over the property. Your attorney should examine the abstract of title carefully to see if there any additional parties that could claim ownership over the home. Even if a seller performed an adequate title search, the buyer is still answerable for any claims that are made on the property, so it's a good idea to purchase title insurance when buying a new home.
- Tax declarations. Like most states, Florida levies a tax whenever property passes from one person to another. In Florida, it's called the documentary stamp tax, and is paid when the deed is filed with the county clerk. There will also be a proration agreement describing how much the buyer and seller will pay to split the outstanding property taxes.
Your Partner in Progress
The road to your new home can be long and frustrating. Let our experienced real estate attorneys answer your questions and ensure you don’t run into problems in the future. Simply fill out the quick contact form on this page to set up a consultation.
Can a married couple create a joint revocable trust?
Yes. A married couple can typically create a joint trust agreement, naming themselves as co-trustees. Under this arrangement, the married couple will own the trust assets during their lifetimes. Upon the death of the first spouse, the surviving spouse will retain control of all of the trust assets during his or her life and also have the ability to change the trust’s final distribution. A joint marital trust is not advisable for every situation, such as for those in second marriages and those with separate assets, but it can be useful for many estate plans.
As a follow up question - if my spouse and myself own all of our assets jointly, why should we create a living trust?
While jointly held assets avoid probate upon the first spouse’s death, a trust would still be advisable upon the death of the second spouse. Potential problems then arise if the surviving spouse is incapacitated and could not establish a trust. Additionally, a joint trust eliminates the possibility of a probate upon a simultaneous death. This means that a joint trust can help avoid probate if both spouses die at or near the same time.
We generally create joint living trusts for many situations. Exceptions to this could be second marriage type situations, for instance, where one spouse did not want to leave all of his or her assets to the surviving spouse.
If you want to learn more about creating your estate plan:
- Please download a copy of my free book, the Top 20 Ways to Protect Your Florida Estate
What is private mortgage insurance (PMI)?
Many first-time homebuyers are shocked by the amount of additional costs involved in purchasing a house. Inspections, insurance, closing costs, fees, and taxes can quickly add thousands to the price of the home.
If you're not paying at least 20 percent down, you'll likely have the additional expense of private mortgage insurance (PMI). Our attorneys explore this unique form of insurance and offer tips for homebuyers to reduce or eliminate PMI quickly.
What Buyers Need to Know About Private Mortgage Insurance
Lenders require homebuyers to purchase PMI when their down payments are less than 20 percent of the value of the home. The evaluation of PMI is usually between .03 percent and 1.5 percent, based on the appraised value of the home, your credit score, and the amount of the down payment.
The good news is that PMI is only required until you have gained a certain amount of equity in your home. The bad news is that PMI is an extra expense that does nothing to protect you from foreclosure.
Unlike other forms of insurance you buy, PMI doesn't protect you—it protects your bank and lender if you become unable to pay the mortgage. If you had a low down payment on a conventional loan and default on the loan after just a few years, the bank will likely lose money when it repossesses and re-sells your house.
However, buyers who put down 20 percent or more own a significant portion of the property before they've even moved in, making them less of a credit risk.
Before purchasing PMI, homebuyers should ask lenders about:
- Payment options. The most common way to pay for PMI is by adding the premium to your monthly mortgage payment, but some lenders offer a one-time lump-sum premium paid at closing. Your lender may also offer a combination of both.
- Automatic removal. Lenders are usually required to remove PMI automatically from the mortgage payment once the buyer has paid the loan balance down to 78 percent of the initial value. However, you may want to double-check the lender’s policy and establish the earliest possible time you qualify to have PMI removed. In most cases, buyers can request that PMI is removed when they have paid 80 percent of the home’s value.
- Other options. Borrowers making a low down payment may have other options besides a conventional home loan. Many lenders offer specialized loans, such as an FHA or one tailored for purchasing property in an underdeveloped area. If you qualify for these alternatives, it's worth crunching the numbers to see how these types of loans compare to a conventional loan with PMI. A loan without PMI at a higher interest rate may not save you much money over a conventional option.
It Pays to Get Rid of PMI As Soon As Possible
The only benefit homeowners get from PMI is the ability to secure a loan to buy the house. Since you'll be paying for something every month that doesn’t help you at all, you should keep a close eye on your mortgage balance and have PMI removed as soon as you can.
For example, let's say the appraised value/purchase price of your home is $300,000. You put five percent down, or $15,000, and the bank issues you a loan for $285,000. You make mortgage and interest payments every month, plus the additional amount for PMI. When your mortgage balance reaches $234,000, you've reached the 78 percent value threshold, and the lender will drop the PMI automatically.
On the other hand, you could call or write your bank when your mortgage balance reaches $240,000, or 80 percent of the home’s value, and request removal of the PMI. It may not seem like two percent makes much of a difference, but in this case it means you could save hundreds in PMI premiums.
Buying a home is one of the biggest financial transactions you will make, and a Florida real estate attorney can protect you both legally and financially throughout the process. If you have questions about buying or selling real estate, please fill out our quick our contact form so you can move forward with peace of mind.
Should I hire a real estate salesperson or listing agent to sell my home?
It can be difficult to say whether homeowners need a listing agent to sell their properties.
While Florida law doesn't require property owners to engage the services of a real estate agent to complete the sale of a home, listing agents offer a significant advantage depending on the location and condition of the property.
Benefits of a Real Estate Seller’s Agent in Florida
Although you may legally sell your home, there's a lot of work involved, and no guarantee you'll be able to get the best price.
Real estate agents may charge hefty commissions, but since they're paid with a percentage of the sale price, it's in their best interest to help you get as much as possible for the property.
Before you put an ad in the paper or list your property on a home-buying website, consider what you may gain from a real estate agent's:
- Knowledge. You know what you originally paid, and you know your improvement costs, but only a real estate professional will know the market value of your home. An unrealistically high asking price may leave your home unsold for months, while underpricing your home can deprive you decades’ worth of assets. A real estate agent can calculate your home’s value and current market trends, and price according to competing listings in your neighborhood. When it comes time to sell, the agent will be responsible for drafting all transfer documents in accordance with Florida laws.
- Marketing plan. While some properties may sell with little marketing, others need a more strategic approach to attract buyers. This includes reaching out to potential buyers through media they are likely to use. Younger families often find starter homes using apps and internet searches, while some buyers rely on newspaper listings. An agent should be willing to take high-quality photos or video walkthroughs for the listing, as well as write a detailed summary of the property that sparks buyers' interest.
- Time and effort. Listing agents are responsible for making your home look attractive to buyers, including staging the property to show its potential and showing the house to prospects. The agent also chooses which prospects to allow to tour the property—such as those who already have loan offers in place—ensuring you only have serious buyers visiting your home.
- Negotiation skills. A good real estate agent is familiar with tiny details that make a big difference when negotiating price. As your agent, he or she knows when it's cheaper to make repairs to a defect or adjust the asking price, and will work to ensure the maximum amount of profit for you.
It May Make More Sense to Hire a Real Estate Attorney for Your Transaction
There are numerous differences between real estate lawyers and agents, and many people choose to involve both in the process. However, there are many instances where legal protection is a major benefit to sellers.
For example, selling a home with known defects in “as is” condition can open a seller up to potential legal action in the future. Some people get into the later stages of a sale before discovering there's an encumbrance on the home. This additional financial burden may stall or sink the transaction.
Even if you love your real estate broker, he or she isn't an attorney. In fact, real estate agents aren't even permitted to answer legal questions posed by their clients—which is extremely problematic given how often legal questions arise during a sale. In addition, while real estate agents can draft sales documents that are legally binding, they aren't necessarily structured to give the seller legal protection. Only a real estate attorney can protect you both legally and financially throughout the process.
Selling a home is one of the biggest financial transactions you will make. We make the process easier for you by offering guidance in our free book, Top 7 Tips for Selling Your Florida Home. Order your copy today!
If you have further questions or concerns, please complete our contact form so you can move forward with peace of mind.
What does a designation of Health Care Surrogate do for a Minor?
A Designation of Health Care Surrogate for a Minor (HCS) provides authorization to a nominated person, other than a natural parent or legal guardian, to give consent to medical treatment on behalf of a minor child. The nominated HCS may complete any consent forms and access medical records. Without the HCS, it can be stressful for a stepparent, grandparent, godparent, or supervising adult. Some examples of when this document is helpful are:
Jill and her stepson, Jack, are involved in a car accident on the way to school. Jack is rushed to the hospital, but Jill cannot get any information regarding Jack’s condition or his treatment. This is because Jill, as a stepmother, has no legal authority until all persons who have priority under Florida law are reached.
Parent or Child is Traveling
A HCS can also be helpful when parents go out of town, leaving their child in the care of a third party, or a child travels without his/her parents, such as for summer camp or extracurricular activities. When completing a HCS, a legal professional can help ensure everything is done in a correct and legally effective manner. For more information, please call me.
How often should I update my Durable Power of Attorney?
You should update your durable power of attorney at least every 10 years, if not sooner. Why?
- The laws change over time;
- Banks and other financial institutions may decline an older document;
- The people you name may change, particularly with a couple that names each other;
- Legal trends change where you may want to have expanded powers to protect your assets;
- and more!
What about a married couple getting older?
One matter to concern ourselves is with a husband and wife. A husband and wife typically name each other as their attorney-in-fact and/or health care surrogate with a child/children as alternate. As the spouses get older, they may diminish in their capacity. If this is the case, they should likely not be each other's agents as they likely cannot act to help each other. Here, the husband and wife would likely want to bypass each other as agent and go directly to a child as their helper. As an example:
Mom and Dad are both 92 and are both failing mentally and physically. Their older estate planning documents only name each other as power of attorney. If Mom fell and went to the nursing home, who could act for Mom? Only Dad! But Dad has capacity issues himself and may not be able to take charge in this difficult situation. So it is likely Mom and Dad would have wanted to update their powers of attorney and advance directives at this time.
If you want to learn more about estate planning, please review the following:
Buying and Selling a Home: The Difference Between a Real Estate Agent and a Real Estate Attorney
You have a lot of options when choosing a representative for your real estate transaction. Florida law doesn't require an attorney to be present when buying or selling a home, and you may legally perform the transaction without involving a real estate agent.
If you want to have someone represent your interests, you don’t even have to choose between hiring a real estate agent or hiring an attorney—you can have both on your side.
However, there are key differences between real estate lawyers and agents, and these can have a huge impact on the condition and value of your purchase.
Differences Between Real Estate Lawyers and Real Estate Agents
Good real estate agents have knowledge of Florida real estate laws and customs and can guide you through simple real estate transactions. It's their responsibility to:
- Know about neighborhoods and surrounding areas
- Perform market analysis of home values
- Submit and negotiate offers between buyers and sellers
- Look for potential defects in the property
- Negotiate a price for repairs or upgrades
- Draw up closing contracts for the final transaction
However, buyers’ and sellers’ agents aren't lawyers, and cannot provide any legal advice during a real estate transaction.
A real estate attorney can perform all of the duties of a real estate agent, but he or she can also:
- Answer your questions. Every real estate transaction involves an overwhelming amount of complex legal documents that must be read and understood before signing. We can explain the legal terms and technical language used in the purchase contract, mortgage, and any other transaction documents, allowing you to sign with peace of mind. In addition, we review all documents and correct any ambiguous language before you sign them, reducing the chances of a problem after the transaction is complete.
- Offer advice. A real estate attorney may have been hired for your purchase, but he or she can advise you on just about any legal issue. For example, there's more than one way to hold title to residential real estate in Florida. An attorney can tell you whether you would benefit more by holding title as sole ownership or joint tenancy, including how each affects taxes and inheritance after the life of the homeowner.
- Explain your options. Each decision you make throughout the buying or selling process has the potential for you to gain or lose a significant amount of money. If you have offers from a variety of lenders but aren’t sure which to accept, your attorney can compare the offers to find out which one best suits your needs. If you decide against the purchase completely, an attorney can examine the terms under which your deposit is forfeited and get your money back from the seller.
- Protect you at closing. Buyers and sellers may get all the way to closing without an attorney, then enlist the help of a lawyer to review closing paperwork before they sign. The fees that a real estate lawyer charges for a document review are often a fraction of the cost of the potential problems they identify and solve before the transaction is complete.
- Take over from an estate agent. Many real estate transactions that begin with the help of an agent end with a lawyer being called in when legal issues arise. An agent could lose his real estate license by answering a legal question for a buyer or seller—even if he knows the right answer. Given these limitations, a real estate attorney is in a better position to protect all of your interests throughout the buying process.
Ready to Help You
If you experience or anticipate any legal problems with your home purchase, only a qualified real estate lawyer can give you the answers you need.
Our attorneys provide as much or as little legal assistance as clients' need, allowing them to complete their sale or purchase with confidence. Simply fill out the quick contact form on this page to set up a consultation with one of our real estate attorneys.
Why do I need a real estate attorney when buying or selling property?
For many people, buying and selling real estate is the largest financial transaction they will ever make in their lifetimes. In addition to the pressure of inspections, negotiations, and closing, there's also the added pressure of setting a price that will meet your needs. The buyer and seller may attempt to make the transaction on their own, or each one can hire someone to act on their behalf—and hiring an attorney for the process can off many advantages.
What Your Attorney Does During the Course of a Real Estate Transaction
While Florida law doesn't require buyers and sellers to hire lawyers for real estate transactions, deals are usually brokered using either real estate agents or real estate attorneys. A real estate attorney can facilitate price negotiations, as well as help save you money and avoid legal liability or unforeseen costs.
We can protect your interests in a real estate transaction involving:
- Negotiations. First-time buyers are often not sure how to negotiate a fair price for the home or space they want, leading to overpayment or the offer falling through. A good real estate attorney will advise you on the worth of the property and how much you can afford, and will know how to negotiate with a seller or seller’s agent.
- Financing and lease agreements. When buyers need a lender to provide the funds for the sale, attorneys can explain the details and terms in the mortgage contract and communicate with the residential or commercial lender on your behalf. If you're purchasing commercial property, an attorney can help you draft and enforce a lease agreement with your future tenants.
- Commercial transactions. If you're buying commercial property, there are special considerations and additional legal issues that may not arise in a home buying transaction. Buyers must consider environmental issues, easements, federal and state zoning requirements, tenant claims, and other issues. Our attorneys can help you file applications for land use permits, address your current and future liability, and take action to secure the investment on your behalf.
- Document drafting and interpretation. Real estate sales involve the signing of many different documents, any one of which contains ambiguous language that leads to future legal battles. We can draft purchase and sale contracts, transfer deeds, leases, tax withholding documents, closing statements, and other documents in a way that clearly establishes liability and associated deadlines.
- Out-of-town buyers. A seller or buyer from out-of-state may not be aware of Florida’s requirements and regulations for real estate transactions. A local real estate attorney is in a better position to investigate and negotiate tax and transfer requirements that may apply to the property.
- Short sales. Bank-owned properties such as foreclosures and short sales involve specialized buying processed and requirements that can place an undue burden on the buyer. Your attorney can negotiate with the bank on your behalf and review the title to make sure you're paying a fair price.
- Seller disclosures. Sellers have a duty under Florida law to tell potential buyers about known hazards on the property before the land, home, or structure is sold. We'll draft a seller disclosure statement that identifies any potential problems, whose responsibility it is to fix them, and who can be held liable in the future.
It can be difficult to know when to involve an attorney in the real estate process. Some people prefer to have an attorney at their side from the beginning, while others will go it alone until a problem arises.
Even if you don't need a lawyer at the start, you shouldn't hesitate to ask an attorney to examine the closing documents before signing. At the very least, an attorney’s guidance gives you peace of mind that all documents are in order—and if they aren’t, you could avoid paying thousands of dollars in unforeseen costs or living with a bad business deal for the rest of your life.
We're Here for You
Whether you're buying a home, a lot of land, or a commercial space, your purchase is a significant investment. Our attorneys tailor services to your specific needs, allowing you to get the right price, financing, and location that works for you.
In addition, we take the time to explain your options in a way you can understand, allowing you to make choices about the future with confidence. Simply fill out the quick contact form on this page to set up a consultation with one of our real estate attorneys.
When are housing associations allowed to take action against a resident?
A homeowners' community association (HOA) has the right to levy fines against a member who commits a violation of the governing agreement. Examples might be failure to comply with aesthetic regulations, or failure to pay for agreed-upon services.
However, Florida homeowners’ association laws set statues about the type of action and amount of fines that can be levied against a community member.
Adverse Actions That May Be Taken Against Florida HOA Members
A refusal to comply with governing documents of the community or the rules of the association is grounds for action by the association, or a member against another member. The other member must own a parcel within the community, or be a member’s tenants or guests who use the common areas.
Under state law, an HOA can take the following actions against members:
- Fines. An association is allowed to charge reasonable fines of up to $100 per violation against a member—or any member’s tenant, guest, or invitee—for the violation of provisions in the association bylaws or regulations in the governing documents. Fines may continue to be levied by the board for each day that the violation continues, as long as the total assessed for the violation doesn't exceed $1,000.
- Use of common areas. If a member hasn't paid a fee, fine, or other monetary obligation to the association within 90 days of assessment, the association may suspend the member or guest’s right to visit common areas or use facilities until the fee is paid in full.
- Voting rights. The HOA may suspend the voting rights of a member who hasn't paid fees or fines that are over 90 days delinquent. A suspended member won't have the right to participate in voting during an election to the board, approve an action, or form a quorum until he or she has remitted full payment of all financial obligations due to the association.
- Liens. A housing association typically has a right of lien on each parcel within the property to secure the payment of fines and assessments. Associations cannot file a claim of lien for fines or outstanding debts of less than $1,000. Once the claim is filed, the lien may be used to secure any unpaid assessments as well as interest, late charges, and reasonable costs incurred in the collection process.
Before an HOA can file a record of lien, it must provide the parcel owner with a written demand that totals the amount of past due assessments; the reason for the assessments; and notify the owner of intent to assert a claim of lien. The notice must be mailed or handed to the owner at least 45 days before the lien may be foreclosed to allow the owner an opportunity to make payment for all amounts due.
Options for Members in Financial Disputes With an HOA
While the HOA has a right to collect unpaid assessments from members, members also have rights in disputes with the association. For instance, a member can take action against an association—even if he or she hasn't paid an assessment—for:
- Failing to provide notice. In most cases, a member cannot be assessed a fine or denied rights unless he or she was given at least 14 days’ notice to address and correct the problem.
- Failing to convene a hearing. Florida law requires members to have an opportunity for a hearing before a committee of at least three impartial members of the HOA board. If the majority of the committee doesn't approve a proposed fine or suspension, it may not be imposed on the member.
- Imposing or enforcing the fine. If a member takes the HOA to court over a fine or lien and prevails, the member is entitled to recover court costs, reasonable attorney fees, and other litigation expenses from the association.
Our Expertise Can Help You
If you're involved in a dispute between a homeowners' association and a member, please give us a call today. Our attorneys have over 30 years of experience representing homeowners and their associations through all aspect of their business operations. Simply fill out the quick contact form on this page to set up a consultation.
Why would a community association need a lawyer?
A community association does much more for homeowners than perform lawn maintenance and collect rent checks. Members of associations governing condominiums, neighborhoods, cooperatives, or other communities have a number of fiduciary duties and responsibilities set forth by the law.
No matter what kind of community association you belong to, you should have qualified legal counsel to represent your interests.
How Attorneys Protect Homeowners’ and Community Associations
A homeowners’ association allows members to take an active role in maintaining a high standard for the community.
Associations are required to comply with construction standards and laws governing the soundness of the buildings and structures in the community, thus ensuring the safety of owners and children who live on the property. In addition to taking part in the community development process, associations must set forth the governing principles of the community and clearly outline the duties of both the association and the homeowner.
The contract between homeowners and associations can provide protection to each party, but it can also give rise to disagreements. An experienced homeowners’ association attorney can perform a number of services that both solve and prevent problems in the community, including:
- Document drafting. Your association is built on the enforceability of its contracts, and we ensure that all documentation is legally sound and drafted in a language that leaves little room for interpretation to minimize potential problems. Our attorneys take a personal approach to the creation of association rules and bylaws, allowing clients to implement regulations and restrictions that establish the character of the community without encroaching on the legal rights of the owners.
- Assessment collection. If an owner fails to make payment, an association has to enforce its rights to impose fines carefully in order to avoid liability for legal action. Under Florida law, there are specific procedures that must be followed before an association can take action against a homeowner. An attorney can guide the association through this process without exposing the association to litigation.
- Statutory interpretation. Association statutes and bylaws that were created decades ago may contain vague or ambiguous language, making it difficult to know when and how they can be enforced. Our attorneys can help interpret the language in governing documents to help each party understand its rights, as well as prepare amendments to governing documents to avoid future confusion.
- Protection and enforcement. Some associations may require occasional legal advice for disputes, while others rely regularly on counsel for day-to-day operations. Our law firm provides as much assistance as each client requires, advising association members on the use of their enforcement options—including fines, evictions, and suspension of voting rights; reviewing governing documents and articles of incorporation for potential errors or liability; or preparing to resolve a matter in court. We also take over the responsibility of informing owners of alleged violations, requesting payment or response from an owner who has committed a violation, and assume the duty of securing the owner’s corrective action.
- Dispute resolution. As the trusted legal representation for nearly 100 different homeowners' associations, we know that it's not always possible to avoid disputes among association members. Our attorneys work to resolve these conflicts with a minimum of interruption in the community while ensuring that the association’s guiding principles are respected.
- Litigation and mediation. If a conflict arises and an owner is threatening legal action, our attorneys can step in to provide mediation and arbitration services to avoid the necessity of going to court. If an owner has already filed a lawsuit against the association, our law firm can aggressively represent the association during settlement negotiations and in the courtroom.
If you belong to a homeowner's association or a condominium association and have questions about contracts, association by-laws, or compliance issues, please give us a call today. Our attorneys have over 30 years of experience representing homeowners and their associations through all aspects of their business operations. Simply fill out the quick contact form on this page to set up a consultation.