Sovereign Immunity: "The King can do no wrong."
By: Paul R. Cavonis, Esq.
Sovereign immunity is a legal principal that dates back to ancient times. It comes from the idea that "the King can do no wrong" and could not be sued. Sovereign immunity is still very much alive and well. As a result, you can't sue the government unless you have specific permission to do so. This principal is reflected in the Florida Constitution which states that suits may be filed against the state only as permitted by law. Florida law provides for a limited waiver of sovereign immunity which permits suits against the state under certain circumstances.
Sovereign immunity applies not only to "the state", as that term is generally understood, but also to agencies of the state and private entities performing what are essentially governmental services. Generally speaking, the state can be sued for breach of contract and for torts (negligence and intentional wrongdoing). However, there are specific procedures which must be followed in order to sue the state, particularly when suing the state for a tort claim. The Florida Tort Claims Act sets forth this procedure. Most importantly, the Florida Tort Claims Act requires a claimant to send a notice to the government within 3 years from the date of the claim. It may be necessary to send this notice to multiple governmental agencies. It is important to note that the 3 year deadline to serve the notice is shorter than the 4 four year statute of limitations to bring a tort action. The claim will be barred if the notices are not timely sent.
Although Florida Law provides for a limited waiver of sovereign immunity, the amount of money which can be recovered from the state by an individual claimant in a tort action is limited to $200,000. There are exceptions to this cap when there is an insurance policy exceeding the $200,000 cap. In the absence of an insurance policy exceeding the $200,000 cap, a claimant may pursue what is called a "claims bill". This is essentially an application to the state legislature to pass a law allowing the state to pay a claim in excess of the $200,000 cap. It is extremely difficult to get a claims bill passed in the legislature.
I have experience bringing claims against the state and state agencies. I welcome the opportunity to discuss any sovereign immunity related claim you may have. To learn more, please visit HelpForTheHurt.com.
Life Care Planning Practice Expanding
By: Dennis R. "Rep" DeLoach III, Esq.
We are glad to welcome Gloria Centonze as DeLoach, Hofstra & Cavonis's second Elder Care Coordinator. Mrs. Centonze is our first social worker, having worked in local nursing homes for over fifteen years before joining us. She is a great addition to our elder law practice as she brings another perspective to helping our clients, and their families, deal with the changes that come with the aging process.
The Life Care Planning practice brings both legal and financial planning together to help provide the best health care arrangements possible for your loved one. An Elder Care Coordinator is an integral part of our this Elder Law/Life Care Planning practice. Elder Care Coordinators assist clients, and their caregivers, with health care placement, advocacy and other aging-related concerns. Generally, the Elder Care Coordinator helps with the following:
- Help clients and families identify care problems and assist in solving them.
- Assist families in identifying and arranging in-home help or other services.
- Coordinate with medical and health providers.
- Provide support, guidance, education and advocacy.
- Help the family ask the correct questions in confusing and difficult circumstances.
When clients retain us, your Elder Care Coordinator is only a phone call away if you have questions on the elder's care, current placement or other needs. Your Elder Care Coordinator has extensive knowledge about the costs, quality, and availability of resources in the community. As our families begin their journey through the long-term care system, it is exceedingly helpful for them to have a supportive and knowledgeable advocate to accompany them, which will alleviate stress by knowing your loved one is being properly cared for.
With the correct healthcare in place, we will look to protecting the family's assets through Medicaid and VA benefits planning. Our goal is to make sure your loved one's assets last for as long as possible while receiving the best care in the correct place.
If you, your family or a friend is experiencing age-related care concerns, please do not hesitate to contact us.
Official Records of a Condominium Association � Part One
By: Peter T. Hofstra, Esq.
If you live in a condominium, you are automatically a member of the non-profit corporation which administers the affairs of your condominium. Said corporation is commonly referred to as a condominium association.
Chapter 718 of the Florida Statutes, which governs the operation of condominiums and their respective associations, defines what constitutes official records of the condominium association. The official records of the condominium association must be maintained within the State of Florida, and in most cases, must be maintained by the condominium association for at least seven years.
The official records of a condominium association include the following:
- A copy of the plans, permits, warranties, and other items provided by the developer of the condominium;
- A photocopy of the recorded Declaration of Condominium and all amendments thereto;
- A photocopy of the recorded Bylaws of the condominium association and all amendments thereto;
- A certified copy of the Articles of Incorporation of the condominium association and all amendments thereto;
- The current Rules and Regulations of the condominium association;
- The corporate minute book for the condominium association;
- A current roster of all unit owners and their mailing addresses and, if known, their telephone numbers;
- All insurance policies maintained by the condominium association;
- All contracts to which the condominium association is a party;
- The title documents for all property owned by the condominium association;
- The accounting records for the condominium association (Chapter 718 of the Florida Statutes is quite detailed with respect to the type of accounting records which must be maintained by the condominium association);
- Ballots, sign-in sheets, voting proxies, and all other papers relating to voting by unit owners;
- A copy of the current question and answer sheet which the condominium association is required to maintain; and,
- All other records of the condominium association which are related to the operation of the condominium and the condominium association.
As you can see, the official records of the association contain a significant amount of information about the condominium and its operation. In our next issue, we will examine the rights of a unit owner to view the official records of his condominium association.
Foreign Investment in Florida Real Estate
By: Dennis R. DeLoach, Jr.
Methods to Hold Title:
As stated in earlier articles of this series, a recent study by Florida Realtors indicated that 19 percent of the total residential sales volume was by foreign investors over the past year. As such, it becomes prudent to evaluate the methods by which foreign investors may own such real estate in Florida and the advantages and disadvantages of each ownership alternative. Through this series of articles we will continue evaluating the alternative forms of ownership for foreign investors including direct ownership by a foreign individual (Discussed in Part I), investment in real estate through a limited liability company (Discussed in Part II), investment in real estate through a foreign corporation (Discussed in Part III), and investment in real estate through a living trust (Discussed in this article).
A revocable, or "living," trust is often promoted as a means of avoiding probate and saving taxes at death. Additionally, a living trust may also be a beneficial method by which foreign individuals can own real estate in Florida. A living trust is a document (the "trust agreement") created by a person to manage their assets during their lifetime and distribute the remaining assets after their death. The person who creates a trust is called the "grantor." The person responsible for the management of the trust assets is the "trustee." The grantor can serve as trustee, or they may appoint another person, bank or trust company to serve as their trustee. The trust is "revocable" since the grantor may modify or terminate the trust during their lifetime, as long as they are not incapacitated.
Benefits of Ownership by Foreign Individual(s) through a Living Trust:
In Florida, a person can create a living trust to avoid probate for virtually any or all of the assets they own � real estate, bank accounts, vehicles, and so on. Unlike testamentary trusts (which only become effective upon death) the grantor of a living trust can retain complete control over all of their assets. Consequently, while a foreign investor may technically place his Florida real estate in a living trust, they still can have control over such assets while living and serving as trustee. Because the grantor retains control of the living trust during their lifetime, they can sell or otherwise deal with the assets of the trust without involving anyone else. Furthermore, the living trust may serve as incapacity planning. In the event of an unexpected incapacity of the grantor/trustee, the trustee's successor would assume control over the trust and act accordingly within the provisions of the trust.
A revocable trust may avoid probate by affecting the transfer of assets during the grantor's lifetime to the trustee. This avoids the need to use the probate process to make the transfer after grantor's death, since upon death the trustee (or trustee's successor if the grantor served as the initial trustee) is responsible for paying all claims and taxes, and then distributing the assets to the beneficiaries as described in the trust agreement. The trustee would have immediate authority to manage the trust assets at the grantor's death; appointment by the court is not necessary. This avoidance of probate may lower the cost and time delays of administering a foreign individual's estate.
Recently, a foreign investor from France utilized the aforementioned method and placed three separate real estate properties in Pinellas County, Florida into a living trust. The existence of the trust will enable his children who are serving as successor trustees to transfer of all three properties, one to each child, without the need to pass through probate. The living trust was created in addition to previously held trusts in his home country.
Tax consequences of any type of ownership:
Regardless of the type of entity by which a foreign investor elects to hold title, said individual should seek independent counsel and advice pertaining to income tax and estate ramifications in both the United States and the individual's country of residence.
The law firm of DeLoach, Hofstra & Cavonis, P.A., is very knowledgeable concerning all aspects of the creation of living trusts.