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.
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Is there a difference between a motorcycle accident lawyer and a car accident lawyer?
Yes! Personal injury lawyers often handle a variety of accident cases, even if they focus their practices on car crash victims. However, there's a big difference between a motorcycle accident lawyer and a general injury lawyer.
Although a car crash may have some similarities to a motorcycle accident, the details of the case and the extent of injuries can be vastly different.
Without the right representation, bike crash victims may be underpaid for their suffering.
Choosing the Right Injury Lawyer for a Florida Motorcycle Crash Case
Under our state law, any attorney licensed to practice here can represent an accident victim. Most law firms don't take every type of case, limiting their knowledge and expertise to the cases and injuries they handle regularly. If you wouldn't hire a tax attorney for your claim, why would you hire an injury attorney who doesn't have motorcycle crash experience?
Our motorcycle accident attorneys can:
- Provide legal advice from a fellow biker. Attorney Paul Cavonis is a motorcycle rider and is familiar with state motorcycle laws as well as the kinds of injuries these accidents can cause. His passion for riding makes him a dedicated advocate for you if you were injured or know someone who was killed in a motorcycle accident.
- Fight against biker bias. Unfortunately, insurers often try to paint motorcycle riders as reckless or irresponsible, implying they are somehow to blame for an accident. Our firm gathers evidence to prove to a jury that you're a safe rider, such as showing that you were properly licensed to ride a motorcycle in Florida, and wore a helmet and proper riding gear. We'll also examine and perhaps present your maintenance and repair records to demonstrate you took care of your machine.
- Accurately estimate your losses. Motorcycle accidents frequently result in much more severe injuries than car wrecks, resulting in long-term lost income, steep hospital bills, ongoing medical care, loss of your motorcycle, and even permanent disability. The effects of a crash can cause a rider to suffer depression, chronic pain, an inability to continue riding, and overall lost quality of life. Our attorneys calculate the total amount of your pain and suffering losses, and go all the way to trial if necessary to secure a financial recovery that will last the rest of your life.
If you're struggling after a Florida motorcycle accident, the attorneys at DeLoach, Hofstra & Cavonis will lay out your options and advise you on how to receive proper compensation. Use the brief contact form on this page to set up a consultation with our injury team.
Who can be held liable if an animal causes a car accident?
Florida's diverse ecosystem gives the state a wide variety of wildlife, from deer and flamingos to bears and alligators.
Unfortunately, these animals often cross roads, wander over bridges, and even scamper through parking lots to look for food. To make matters worse, auto insurers might not cover the damage when your car collides with an animal.
Compensation for Animal Strikes to Vehicles in Florida
An animal darting into the road can cause serious injuries and extensive damage to your vehicle. Although Florida requires minimum insurance coverages for all drivers, these policies usually don't apply when an animal causes a crash.
Potential payment for these crashes depends on whether the accident involved:
- Domestic animals. Accidents caused by pets, farm animals, and other domesticated creatures fall on the animal's owner. You could seek payment under the owner's homeowner's insurance, or another liability policy.
- Wild animals. Wild animals don't have owners, so payment for a wildlife crash falls under your comprehensive auto policy. This optional coverage pays for damage caused by something other than a collision with another car, such as vandalism, slippery roads, and animal strikes.
- Near-miss crashes. If you manage to avoid hitting the animal, but run off the road or strike a fixed object, you may seek reimbursement for repair costs under your collision coverage. Collision insurance is also optional in Florida, and covers repairs to your vehicle after a single-vehicle crash (such as hitting a tree or veering into a ditch).
- Swerve collisions. Sometimes swerving to avoid an animal can cause you to sideswipe cars in the next lane—or place you in the path of an oncoming vehicle. Your state-required personal injury protection coverage can be used to pay medical bills and lost wages for these accidents, while collision coverage may also apply if you're considered to be partially at fault.
If you're struggling after a Florida car accident, the attorneys at DeLoach, Hofstra & Cavonis can advise you on possible options and secure the compensation you need to move on with your life. Simply fill out the brief contact form on this page to set up a consultation with our injury team.
Can I afford a motorcycle accident lawyer?
Our legal team knows how a crash can suddenly increase both physical and financial costs. We have spent many years as motorcycle injury attorneys and experienced riders, and want to relieve the pressure placed on victims. That is why DeLoach, Hofstra & Cavonis always represents motorcycle accident clients on a contingent fee basis.
How Contingent Fees Benefit Motorcycle Accident Victims
If you have been forced out of work or into hospital care after a crash, you probably don't have the resources to hire an hourly attorney. Fortunately, the state of Florida allows us to charge a contingency fee, only collecting payment for legal services if and when we recover for you. As our client, you must agree on the percentage of the amount in writing before the case begins.
Contingent fees make it easier for you to pay for:
- Upfront expenses. Throughout an injury case, there are many out-of-pocket expenses, such as copying and filing costs, records requests, hiring investigators, taking depositions from eyewitnesses and expert witnesses, storage fees, and creating trial exhibits. We cover all upfront costs of the case, and you reimburse us once the case settles.
- Legal representation. Without the burden of ongoing legal costs, you can focus on your recovery. If we don't win the case, you won't be responsible for any legal fees.
- Injury costs. Paying for legal services with a percentage of the settlement allows you to continue care while your case is pending. It also allows you to pay for legal services only after you have the funds to do so.
- Court battles and appeals. The percentage we charge depends on the amount of damages, whether we are able to reach a settlement in negotiation or go to court, whether the case is tried more than once, and whether the case is appealed to a higher court.
Our injury attorneys also take away the burden of paying for legal advice after an accident, providing free consultations to all injury victims.
If you're struggling after a Florida motorcycle accident, the attorneys at DeLoach, Hofstra & Cavonis can advise you on your options and secure the compensation you need to move on with your life. Simply fill out the quick contact form on this page to set up a consultation with our injury team.
What do I need to prove to recover damages in an injury case?
If you suffered a serious injury, you may need to file a lawsuit to get the compensation you need to pay for medical bills and financial losses. While Florida law allows you to recover these costs from at-fault parties, you will have the burden of proving that the person who caused the injury—the defendant—was legally negligent.
Proving Negligence Is Key to Recovering Damages for an Injury
Injury cases such as slip-and-falls, car accidents, and medical malpractice are all based on the legal doctrine of negligence. Simply put, negligence is failure to ensure the proper degree of care necessary to prevent harm to another person. While there are many kinds of evidence that can be used to prove negligence, there are also specific tenets of negligence law that must be proved in order to recover damages.
Before you can be awarded damages for injuries, your attorney must prove:
- You were owed a duty of care. This means the defendant had a legal obligation to provide for your safety, also known as a duty of care. There are some cases when the defendant’s duty of care may be minimal, such as if you were trespassing at the time your slip and fall occurred.
- The defendant breached the duty of care. If you were owed a duty of care, there must be evidence the defendant was in violation of that duty. This may include different types of negligence, such as failing to fix a hazardous condition, acting carelessly or recklessly, or neglecting to warn you and others of the potential danger.
- The defendant’s breach caused damages. The attorney has to establish a clear link between the breached duty of care and your injuries. If the defendant's legal team can prove your medical condition resulted from something else, the defendant may not have to pay for your injuries—even if the judge agrees this individual or entity was otherwise negligent.
- The degree of your own negligence. In Florida, your own negligence for an injury doesn't prevent you from seeking damages. However, if you are partially to blame for an accident, the amount of your recovery is reduced by your percentage of fault. Legal counsel for the defense will try to make your percentage of fault as high as possible to reduce the amount of money owed to you, but our attorneys gather evidence to refute these claims.
If you suffered an injury, our personal injury attorney can outline your options and work to secure the compensation you need to recover. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
What does premises liability mean?
Premises liability is the legal term for the responsibility for an injury on someone else’s property. Under premises liability laws, you have a right to seek payment from the owner if you suffer an injury in the owner’s house, business, or land.
Florida Premises Liability Cases
The most common accidents in premises liability cases are falls, such as trip and fall and slip and fall incidents. However, victims can suffer a wide range of injuries on someone else’s property, including injuries from falling debris, slick snow or ice, broken gates, faulty wiring, or even assault.
Property owners have a duty to make their homes and commercial buildings reasonably safe for visitors. If an injury was caused by a landowner or property manager’s negligence, there's a good chance the injury qualifies for a premises liability claim.
There are many different important factors involved in these types of cases, including:
- Who can bring a premises liability claim? While pretty much anyone who suffers a severe injury can bring a premises liability claim, property owners have a different duty of care to different types of visitors. The highest standard of care is given to guests invited onto a property for business reasons, such as shoppers in a grocery store or patrons of a restaurant. It also applies to people invited to the property in order to do work, such as repairmen. The second-highest level of care is given to social guests or people invited onto a property for social reasons for a specific period of time, such as inviting friends and family members to a party. In many cases, people who show up on the property unexpectedly like a friend or neighbor can also be considered a social guest. The lowest tier of care is given to trespassers, or people who were not invited and have no reason to be on the property.
- Who can be liable? Many different people who have control or rights over a property can be held liable for a premises liability injury. Owners of homes and businesses; property managers who oversee several shopping malls, condominiums, or hotels; and landlords can be liable if they fail to remedy a dangerous condition on the property within a reasonable period of time. If an injury occurred in a shop, liability may fall on the shop owner, the owner of the leased property to house the shop or both.
- What do I need to prove? Property owners and other liable parties generally cannot be held responsible for injuries resulting from a dangerous condition on their property that they didn't know about. In order to collect payment in a premises liability case, you will first need to prove that the owner/liable person knew about—or should have known about—a hazardous condition on the property. Next, you must prove the owner/liable person failed to fix the condition and/or warn others of the danger. Finally, there must be proof that you were directly injured by the hazardous condition.
- Are there different laws for trespassers or children? Trespassers may not have permission to enter a property, but that doesn't mean property owners don't have any liability for their safety. Owners have a duty to warn anyone on their properties about potentially dangerous or lethal conditions and can be liable for any intentional injuries to a trespasser. Owners have a special duty of care toward children, since children may not recognize conditions as harmful—such as trampolines, swimming pools, or discarded appliances. A property owner is responsible for taking reasonable steps to protect nearby children by installing preventive measures around it (such as a fence with a locking gate) or by removing dangerous conditions from the property.
- What can I recover? Injuries in a premises liability case can be extensive. Damages may include compensation for medical treatment, physical rehabilitation, lost wages and income, disability, out-of-pocket expenses, pain and suffering, and other remuneration.
If you were injured on another person’s property, our personal injury attorney can advise you on options and get the compensation you need to recover. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
Do I need insurance to ride a motorcycle in Florida?
Florida motorcycle laws can be slightly confusing, especially when it comes to insurance.
In our state, riders aren't required to carry insurance to register or even to ride a motorcycle. However, they can be held financially responsible if charged with negligence in a motorcycle crash.
High Costs of No Motorcycle Insurance
Much like the state's motorcycle helmet law, Florida motorcycle insurance laws require you to carry only minimum coverage to pay for injuries sustained in a crash. Instead of any specific coverage or policy, Florida motorcycle riders must carry at least $10,000 in medical benefits to protect you against liability in crashes. This coverage can come from a dedicated policy or from your regular health insurance.
Unfortunately, a $10,000 policy is likely to be far less than what you may need after a collision, especially considering the severe injuries bikers suffer in a crash. Florida’s accident and insurance laws also provide a lower standard of protection to bikers than to drivers, including:
- No PIP coverage. In our state, operators of motor vehicles with four or more wheels are required to carry personal injury protection (PIP) to guarantee payment of their medical bills in an accident. However, PIP payment isn't available to motorcycle riders injured in a crash—even if you carry PIP on another vehicle.
- Lack of no-fault protection. Florida's “no-fault” laws for motor vehicle accidents only apply to vehicles with four or more wheels, excluding motorcycles and their owners. If you have more than $10,000 in motorcycle crash injury costs, you must pursue compensation for outstanding medical bills and lost income from the other driver.
- Penalties for causing an accident. Even though motorcycle insurance isn't required, Sunshine State riders can still face penalties if involved in crashes without insurance. If you're found to be at fault for an accident and don't have liability insurance, you may have your license suspended, lose riding privileges, and face civil fines.
Although it's not required, you should definitely get motorcycle insurance if you're riding a bike in Florida. Some insurers offer a multi-policy bundle—and often a discount—for insuring both a car and motorcycle and may offer additional uninsured motorist coverage to protect a rider from a wreck with an uninsured driver or a hit-and-run.
If you were injured in a motorcycle accident, our personal injury attorney can counsel you on available options and get the compensation you need to recover. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
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, which roughly means going to your family in the order set forth in the Florida statutes.
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.
Do I really need a realtor for a residential real estate transaction?
Maybe. Buying a home is a stressful and overwhelming process, often from the first online search for real estate listings. Realtors can alleviate a lot of the stress and confusion homebuyers face, but they'll also take a fee for their services. That said, realtors may be wise investments for people who don't want to do the legwork, research, and negotiations necessary to get the best possible deals.
Using a Realtor to Buy Florida Real Estate
A realtor is a person who performs real estate-related duties for someone buying or selling a home. A realtor working for the seller is often called a seller’s agent, while the realtor representing the buyer is known as a buyer’s agent.
Generally, both buyers’ and sellers’ agents work on commission—usually a percentage of the home’s final purchase price. The fee is generally settled at closing, so you won’t pay for the agent's services until he or she is finished working for you. In some cases, a realtor may want clients to sign an exclusivity contract, which is a promise that you won’t work with another broker for a specified period of time.
In addition to fees, there are a few other considerations when hiring real estate agents. For example, they are unable to offer legal advice during a real estate transaction. Also, since their commissions are based on the sale price of the home, so they likely have a vested interest in the sales price of the property you are buying.
Buyer’s Agent Benefits for a Florida Home Purchase
Realtors are not the only people who can act as buyers’ and sellers’ agents. A real estate attorney can also perform certain duties of a real estate agent, with the added bonus of advising you on legal matters that arise during the transaction.
Whether you're using a realtor or real estate attorney to buy property, your buyer's agent can be invaluable throughout the process by:
- Finding potential properties. Buyers can easily miss opportunities in a seller’s market, where homes may be sold within days of public listing. Agents often receive information about listings and potential listings ahead of the general public, and can contact you immediately if a home matching your specifications is becoming available.
- Experience. Buyers' agents have experience in the market trends, neighborhood statistics, zoning codes, school districts, and local businesses in residential areas. This specialized knowledge is much more beneficial at the start of a home search, as learning about potential downsides later in the purchase process can cause delays or cancel the transaction altogether.
- Offering mortgage advice. Realtors often recommend one or two lenders for buyers who need to finance home purchases, and agents are forbidden from profiting off of these referrals to lenders.
- Negotiating with sellers. Agents can perform market analyses that tell you if a seller’s asking price is too high or too low, and will consider any potential repairs or costly problems on the property to calculate a competitive offer. They're often familiar with the costs of upgrades, title problems, and seller motivations that can be leveraged during negotiations.
- Closing. Real estate closings involve a deluge of paperwork, and agents are familiar with drawing up the documents and contracts necessary to complete closing. If buyers have questions during closing, they can clarify a document’s meaning with the agent before signing, attaining peace of mind.
Our real estate attorneys can work alongside or instead of a realtor to give buyers the best chance of finding an affordable home while protecting their interests. Simply fill out the quick contact form on this page to set up a consultation and get answers your questions.
When should I accept a buyer’s offer on my house?
Whether you receive one offer on your home or several, it can be difficult to tell if the terms and suggested purchase prices are right for you.
In addition, sellers have a limited period of time to consider offers before they expire, making it even more stressful to choose the right buyer.
Fortunately, there are a few factors that can help sellers determine when a buyer’s offer meets their needs.
Three Things to Consider Before Accepting an Offer
While sellers may be tempted to accept the highest offer on their homes, there's much more to consider than the sale price.
An offer that's far higher than the rest may cause a seller to refuse other potential buyers—only to have the offer fall through. Ultimately, sellers have to evaluate which offer presents the best deal. This may not always be the one with the highest price.
Before deciding whether to accept or pass on an offer, sellers should carefully examine:
- Financing. With a cash offer, there's no need for a buyer to involve a lender, eliminating many of the approvals and deadlines imposed when there's a mortgage provider. Cash offers typically mean shorter wait times for closing and far less paperwork in the transaction.
- Timing. Timing affects every aspect of a real estate transaction, from listing to closing. A seller with a specific timeframe for moving—such as relocating to a new city for a job—may be more likely to accept a first offer; while someone who is selling the house for other reasons may wait for a higher bid. Even the amount of time the house is on the market can affect its value, with the highest offers likely in the first few months the house is listed.
- Details. If a buyer’s offer is slightly low but meets time constraints, sellers may make a counteroffer to the asking price, or negotiate for the buyer to pay for closing costs, inspections, or repairs.
In most cases, the best offer is the one that provides the most benefits to the seller’s unique situation. Our real estate attorneys have over 30 years of experience representing buyers and sellers in Florida, and can examine the details of your offers to help you choose the one that best suits your needs.
Simply fill out the quick contact form on this page to set up a consultation and get answers your questions.
Can a tenant be evicted by a Florida HOA?
When new owners purchase condominiums and other residences governed by homeowners’ associations (HOAs), they agree to the terms of your HOA’s bylaws. However, a tenant who rents a home in these communities—with the owner acting as landlord—may not be subject to HOA rules. So what happens when a tenant breaks the code of conduct established by the community and its members?
In many states, HOAs are limited to taking action against a member in a homeowners’ association whose tenants are causing trouble, and have no oversight of the tenants themselves. Fortunately, Florida does allow HOAs to take action against tenants, up to and including eviction, but only in specific circumstances. There are procedures that must be followed in order for the process to be legal.
Florida HOAs Can Deal With Tenants for Non-Payment Only
In the past, Florida parcel owners could leave the community, rent out their homes, and keep all of the rent money—and HOA couldn’t take any action other than to foreclose.
In 2010, the Florida Legislature amended HOA laws concerning the right to collect payment for past-due association fees and assessments, giving tenants some accountability for a homeowner-landlord’s unpaid fees.
Today, Florida HOAs have the legal right to do the following:
- Collect past due assessments from tenants. If a homeowner-landlord falls behind in his assessments, the HOA may serve a notice to a tenant demanding that rent be paid directly to the association. If the tenant complies, the amount paid to the association is credited against the landlord’s debt, and the tenant cannot be evicted from the residence by the landlord as long as rent payments continue. The tenant is released from his obligation to the HOA if he leaves the unit or once the debt owed by the tenant’s landlord is paid in full.
- Prevent a tenant from exercising member rights. Florida law states that a tenant who is paying a homeowner’s debt doesn't have any of the rights of an owner within the community, including the right to vote in elections or to examine the association’s records.
- Evict a tenant. If the tenant receives a written demand for payment from the HOA but continues to pay rent to the homeowner-landlord, the HOA can evict the tenant on the grounds of failing to meet a monetary obligation.
We Can Help You Navigate and Avoid Tenant Disputes
Once again, Florida HOAs only have the right to remove tenants for non-payment. A tenant is obligated to follow the terms of a lease issued by the parcel owner, and may not have ever seen (or agreed to) the HOAs community guidelines and bylaws.
However, the HOA can strengthen its position by including lease and rental terms in its governing documents, with particular attention to the enforceability and legality of landlord-tenant agreements.
If you're having trouble with an owner or tenant on your property, our attorneys can:
- Serve and enforce collections. HOAs are required to serve notice to tenants before assigning them the responsibility of paying a landlord’s assessments. The notice must be made by United States mail or hand delivery; cite the Florida Statute giving the HOA authority in the matter; and contain clear language outlining how to remand rent payments to the homeowners’ association. If payment still isn't made, we can intercede on your behalf to collect payment in full.
- Represent your interests. If your governing documents contain enforceable policies regarding delinquent tenants, we can begin taking eviction actions. If the matter still isn't resolved, we can move forward with the filing of liens or foreclosure action, representing the association all the way to litigation.
- Strengthen your governing documents. We would be happy to review the language and stipulations regarding rental in your governing documents, ensuring that all future tenants will be bound by the terms and principles agreed upon by members.
Whether you need help creating your homeowners’ association or are in the middle of a dispute with a member, we can help. Our real estate attorney has 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.
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