Find Answers to Your Common Real Estate Questions
It’s natural to have many questions when it comes to property issues. Let our Florida real estate attorneys share some of their thoughts on the most common worries about local real estate. Their years of experience and knowledge of local law can help you decide how best to move forward to resolve your legal problem.
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Does Florida have laws that protect squatters' rights?
Trespassing may be illegal in Florida, but there are certain circumstances when a trespasser can gain the right to stay on a property if he or she remains on the property for an extended period of time.
Sometimes called “squatters’ rights,” the legal term for a granting a trespasser right to use land is called "adverse possession.”
In order to obtain land through adverse possession, there are many things a trespasser must do. And there are certain actions the owner
can take to evict a trespasser who does not have a right of possession.
How Squatters May Make a Legal Claim to Property in Florida
Adverse possession laws make to possible for unwanted or abandoned property to be legally transferred to an owner who's willing to put it to good use. However, some may see adverse possession as a way for squatters to steal property without compensating the owner. In order to avoid as many legal disputes as possible, Florida has strict requirements on when and how trespassers may gain a legal right to someone else’s property.
There are many requirements for a valid adverse possession claim in Florida, including:
- Hostile claim. The trespasser must be aware that he or she is trespassing. In other words, she must know that the land doesn't belong to her at the time she begins living on the property.
- Actual possession. The trespasser must be physically present on the property and treating the land as her own.
- Open and notorious possession. Unlike traditional trespassing which is often done in secret, a trespasser in this case would believe she has a legal right to remain on the property. As a result, the act of trespassing cannot be done in secret, and the trespasser should be living openly on the property.
- Continuous possession. Under Florida law, a person may have the right of adverse possession if she occupies the land continuously, without sharing possession with others, for seven years. During this time, the owner shouldn't have taken any legal action to regain access to property.
- Tax and title. A trespasser who pays property taxes for seven years, or acts under "color of title” from a tax assessor for four years, may obtain adverse possession.
- Improvements. Florida’s adverse possession laws require a trespasser to make alterations or improvements to the property. Improvements may include mowing the lawn, removing dead trees, planting a garden, or making modifications to the structure.
Ways for Owners to Legally Remove Trespassers
If someone is living on your property without your permission, you should bring a removal action as soon as you become aware of the situation. While there isn't a specific time limit for a landowner to challenge a trespasser, the length of time you wait to take action may affect the outcome of the case.
Owners may be able to challenge adverse possession claims through:
- Behavior of trespasser. Adverse possession requires the open, continuous, and peaceful occupation of a piece of land. If there's evidence that someone is living in a vacant building, but the person isn't present at all times, the occupation isn't open and continuous. Similarly, any littering or criminal activity (such as drug use or vandalism) can be seen as an opposition to improving the property.
- Encroachment agreements. Adverse possession can transfer ownership from one person to another, or it can be used to grant a trespasser the right to access or pass through a piece of land. A narrow lane that acts as a shortcut between buildings may be used by the owner and a neighbor, even though it lies on the owner’s land. In these circumstances, an owner may give the neighbor—technically a “trespasser"—written permission to use the lane under certain circumstances. The document may prevent the neighbor from obtaining legal rights to the lane and passing along that right to future owners.
- Unlawful detainers. Owners cannot take eviction actions against squatters, since squatters are not bound by landlord-tenant rental agreements. In these cases, owners must file an unlawful detainer action, which challenges a person’s right of possession over a home or land.
Choose a Legal Partner Who Can Help
Laws involving adverse possession and trespassing disputes can be complex, and will require a thorough investigation of the details in your case. If you would like to know your rights as a Florida landowner or occupier of a piece of land, simply fill out the quick contact form on this page to set up a consultation.
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.
Should I Get A Property Survey When Purchasing Real Property?
When purchasing real property, one of the issues presented is - Should I get a survey?
If you are financing your purchase, the decision will undoubtedly be made for you by your lender. Most, if not all, lenders will require a survey of the property so that the survey exception will be removed from the lender's title insurance policy.
If you are paying cash for the property, you must decide whether or not to obtain a survey. The following are some guidelines for you to follow:
A) If the property is not a platted lot within a subdivision, you should definitely obtain a survey;
B) If the property is a platted lot within a subdivision and the neighboring properties do not have any improvements near the apparent boundary lines of the property, a survey is probably not necessary;
C) If there are improvements near the apparent boundary lines of the property, a survey would be recommended;
D) If you intend to make any improvements to the property post-closing (a room addition or the installation of a swimming pool), you should definitely obtain a survey.
In the last case, once you have the survey in hand, you should visit with the building officials in your city or county to verify that you can, in fact, build what you desire to build upon the property.
The cost of a survey is generally low in relation to the cost of the purchase itself. Therefore, when in doubt, obtain a survey and present it to your closing agent so that your title insurance policy will not contain a survey exception. Additionally, when you sell your property, your buyer may be able to use your survey.
What identification do I need to bring to my real estate closing?
At a real estate closing, many documents are executed by the seller and buyer. A substantial number of the documents must be notarized by a notary public.
Section 117.05(5) of the Florida Statutes provides that a notary public may not notarize a signature on a document unless he or she personally knows, or has satisfactory evidence, that the person whose signature is to be notarized is the individual who is executing the instrument.
It is highly unlikely that you will personally know the notary public at your closing, therefore, you must provide the notary public with at least one of the following forms of identification:
- A Florida identification card or driver's license issued by the public agency authorized to issue driver's licenses;
- A passport issued by the U.S. Department of State;
- A passport issued by a foreign government if the document is stamped by the United States Bureau of Citizenship and Immigration Services;
- A driver's license issued by a public agency authorized to issue driver's licenses in a state other than Florida, a territory of the United States, or Canada or Mexico;
- An identification card issued by a territory of the United States or a state other than Florida;
- An identification card issued by any branch of the armed forces of the United States; or,
- An identification card issued by the United States Bureau of Citizenship and Immigration Services.
We highly recommend to our clients that they obtain a Florida identification card if they no longer possess a driver's license.