Legal Scoop on Southwest Florida Real Estate

Legal Scoop on Southwest Florida Real Estate

2016 Florida Legislative Wrap-Up Presented by ULI SW Florida, REIS and FPZA

Posted in Land Use

On April 21, 2016, Southwest Florida’s state legislators presented a “Legislative Wrap-Up” at the Cohen Center of Florida Gulf Coast University. This year’s event was well attended and presented for the first time as a collaborative effort between and among ULI of Southwest Florida, REIS, and the FPZA.

This Year’s Legislative Panel

Attendees had the pleasure of hearing about many of this year’s successful and unsuccessful bills from the following legislative panel:

Highlights from the 2016 Legislative Session

Following a brief introduction by moderator Jenna Buzzacco-Foerster, each panelist was given several minutes to discuss their greatest accomplishments of the 2016 Legislative Session.

From a natural resources perspective, Representative Caldwell was particularly proud of his Committee’s success with the comprehensive Water Policy bill and a State Lands bill which cleaned up a number of procedures relating to the acquisition, management, and disposition of state lands.

Representatives Passidomo and Rodrigues also discussed Florida House Joint Resolution 193, Solar or Renewable Energy Source Devices. This proposed amendment to the Florida Constitution passed unanimously in the Florida Senate and will be seen on the state’s primary election ballot on August 30th. According to Representative Passidomo, if approved by referendum, this energy policy would allow commercial businesses to write off the costs of installing solar panels for purposes of ad valorem taxation. As a requirement for amendments to the Florida Constitution, an approval by at least 60% of the electors voting on the measure will be necessary for the amendment’s passage.

In addition, Representative Eagle gave a brief summary of the Legacy Florida bill, which will help restore the Everglades, the state’s natural springs and Lake Apopka. The Legacy Florida bill was a bipartisan effort that requires the state to set aside up to $200 million a year for Everglades restoration over the next 20 years. According to Rep. Eagle, the Legacy Florida bill was created in order to implement Amendment I, a Florida Constitutional amendment that was approved by 75 percent of voters in 2014. He also described his efforts in sponsoring a Building Code bill that addresses a number of Florida Building Code related issues including fire safety requirements for new buildings and safety issues for both public and private swimming pools.

Unsuccessful Legislation in 2016

The panel also noted that, of the over 2,000 bills that are filed each year, only around 200 will ultimately pass and become law. Unfortunately, due to some disagreement between our state’s real estate interest groups, one of this year’s unsuccessful pieces of legislation was the much anticipated Marketable Record Title Act (“MRTA”) bill. An overview of the recently failed MRTA bill can be found in an earlier publication of the Legal Scoop by clicking here.

Another controversial bill that died in the Senate would have created new regulations for fracking in Florida. According to Representative Rodrigues, a sponsor of the bill, this legislation would have created a permitting scheme that required the disclosure of chemicals used for fracking and a moratorium on “unconventional” activities until further studies were completed. However, because a number of powerful environmental groups opposed the bill’s language which only placed a moratorium on “unconventional” drilling methods, it seems that the regulation of fracking will remain on the table until next year’s session.

Bottom Line

If you would like any further information about the above-mentioned legislation or this year’s Legislative Wrap-Up presentation, please contact me at

Photo Courtesy of Mark Goebel under Flickr Creative Commons

Buyers and Sellers Beware: Association Approval Requirements May Delay Closing

Posted in Condominium, Due Diligence, HOA

sold flickr MarkMoz12Selling or buying a home within an association may not be as simple as buyer offers and seller accepts.

In Florida, condominium and homeowners’ associations may require potential buyers to submit an application to the association before allowing the buyer to close on the property. A buyer’s failure to timely submit an application to a governing association could delay closing.

Here are a few tips for anyone looking to buy or sell a home governed by an association:

  1. Before listing your home, review the governing documents to see if they include provisions subjecting potential buyers to the association’s approval;
  2. If they do, check with the Association manager early on to see if there is a timeframe attached to the approval process, e.g., buyer must submit an application no later than 30 days prior to the transfer of property; and
  3. Apply early to give the association adequate time to process the application.

Following these steps will help minimize the risk of delays in your closing.


Photo credit: MarkMoz12 under Flickr Creative Commons License

Can an Association Collect Assessments Once a Homeowner Files Chapter 13 Bankruptcy?

Posted in Condominium, HOA

11702998186_540598856a_k This question comes up a lot from our association clients, who are often unsure about how to proceed, for fear of violating the automatic stay. Many associations know they should refrain from seeking collection efforts against homeowners for outstanding pre-petition assessments, but what about post-petition assessments? Further, can the association attempt to recoup pre-petition assessments without violating the automatic stay?

Case Study – Montalvo

A recent decision in In re Federico Augusto Montalvo, 546 B.R. 880 (M.D. Fla. 2016) addressed these issues. The owner of two condominium units filed Chapter 13 bankruptcy and specified in his Chapter 13 Plan that he was surrendering his interest in the units, although he held title to units during the pendency of the bankruptcy case.

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Community Association Rental Policies: New Law Provides Leniency for Servicemember Rental Applications

Posted in Condominium, HOA

iStock_000019598645_MediumCommunity associations which have rental restrictions and policies that require association approval of prospective tenants should be cognizant of a new law that will go into effect this summer. Many association policies in this regard afford the association a fairly lengthy period of time, sometimes up to thirty days, to complete review and processing of a rental application. However, effective July 1, 2016, the time period an association has to complete the review process will be statutorily limited as it relates to applications of prospective tenants that are members of the U.S. Armed Forces on active duty or state active duty, the Florida National Guard, or the United States Reserve Forces.

Chapter 2016-242, Laws of Florida, passed on April 15, 2016, provides for the creation of Section 83.683, Florida Statutes (part of the Florida Residential Landlord and Tenant Act), relating to rental applications by a servicemember. Under the new law, associations that have policies requiring prospective tenants to submit an application for approval by the association prior to residing in a rental unit or parcel within the association’s control  must complete processing of a rental application submitted by a prospective tenant who is a servicemember within 7 days after submission. Further, the association must, within that 7-day period, notify the servicemember in writing of an application approval or denial and, if denied, the reason for denial. Absent a timely denial of the rental application, the association must allow the unit or parcel owner to lease the rental unit or parcel to the servicemember and the landlord must lease the rental unit or parcel to the servicemember (presuming all other terms of the application and lease are complied with).

This law will be applicable to any condominium association under Chapter 718, cooperative association as defined in Chapter 719, or homeowners’ association as defined in Chapter 720.

Gated Communities: How Associations Can Reduce Liability for Neighborhood Crimes

Posted in Condominium, HOA

Gated community associations are perceived as being safer communities, which attracts homeowners who are willing to pay a premium to feel safer in their homes. However, sometimes the expectation of having a high degree of security can backfire when a crime occurs within the gates.

We have seen an uptick in negligent security cases. Criminals will be criminals, and they find ways to exploit gaps in security measures. Homeowners who have taken their security for granted because of the gate and walls may be lax in taking personal precautions to protect themselves– leaving doors unlocked, not turning on security alarms, not being as vigilant when outside at night. Such oversight may result in the homeowner becoming a victim of a crime. Looking for deep pockets, the homeowner victims in some cases have sued their association for not having provided the security the homeowner claims they expect and have been guaranteed.

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Condominium Association: Helping Unit Owners Breathe Easy – How to Ban Smoking On Limited Common Elements

Posted in Condominium, HOA

pexels-photoWhile enjoying themselves on their balcony, condominium unit owners have been consistently molested by clouds of cigarette smoke emanating from their neighbor’s balcony. They want to know what the Association can do to help.

The answer depends on what is in the declaration of condominium.

Assuming the declaration doesn’t include a restriction against smoking on the balconies, a general nuisance provision in the declaration may provide the Association or complaining unit owner with some recourse. The drawback to this general provision is that without specifically prohibiting smoking on limited common elements, enforcement may be rather challenging and time-consuming.

If the declaration or bylaws allow the Association to make rules regulating the limited common elements, the Association may have a simpler approach to eliminate the smoking problem.

If that is the case, the Association could pass a rule which prohibits smoking on balconies, classifying it as a nuisance. After all, having smoke blown in your face certainly disrupts your peaceful enjoyment of your balcony.

By specifically prohibiting smoking, enforcement of the rule becomes much easier.

While under the general nuisance provision, the smoker could have argued that his smoking did not rise to the level of a nuisance. Under this specific provision, there is no room for the smoker to argue whether or not smoking falls under the definition of “nuisance.”

With the prohibition spelled out in a properly-adopted rule, the Association can more easily take enforcement action, and the unit owners can go back to enjoying their balcony in peace.

Governor Scott Signs HB 1361 into Law

Posted in Land Use

iStock_000015122897XSmall.jpgOn March 11, 2016, this year’s Legislative Session came to a conclusion. From a land use perspective, Florida’s CS/CS/HB 1361 (the “Bill”) proposes several important amendments. The Bill was approved by the Governor on Friday, March 25, 2016 and will become effective on July 1, 2016. A copy can be viewed here.

What You Need to Know

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3 Things You Need to Know About Condemnation Right Now

Posted in Eminent Domain

You get a letter from a government agency notifying you that your property will be needed for a public project. Now what? Here are three things you should know:

  1. You’re entitled to an appraiser. This is vital. You want to have your own expert to provide you with an opinion on what your property sought by the condemning authority is worth. In some circumstances, the condemning authority may be responsible for paying your reasonable appraiser costs.
  2. You’re entitled to the construction plans. This, too, is vital. You’ll need to know precisely what is planned for the property the condemning authority wants to take (for example, the installation of utility lines, roads, sidewalks, and other structures) AND you’ll need to know where the condemning authority plans to put its infrastructure (above-ground, below-ground, or in the air). You may need to hire an engineer in order to review the plans, which takes us to the third thing you need to know about condemnation right now.
  3. You’re entitled to a lawyer. This is the most important thing to know. Your lawyer should be familiar with the condemnation statutes and case law and should know a number of appraisers, engineers, and other professionals who can help you maximize your damages claim for your property sought by the condemning authority. The condemning authority is responsible for paying attorney fees, as set forth in Florida Statutes Section 73.092.

Know your rights. If you have any questions or concerns on condemnation, please feel free to reach out to me at

“They Owe Me Some Money – Can I Slap a Lien on Them?”

Posted in Lien Law

construction moneyA good place to start is our collection of previous blog posts on various types of liens. The answer is “Maybe.” Did you perform labor, provide services, or sell materials used on a construction job? If the answer is “Yes,” and you meet some other requirements, then you may be able to record a claim of lien.

Circumstances for Lien

In most other circumstances, however, you don’t have a pre-judgment right to record a lien against real property owned by someone who owes you money. But, even if you cannot record a lien against someone right now, you may have other options. Keep in mind that a lien is merely a right to look to property as security for a debt. You may still obtain relief against someone who owes you money if you have a valid basis on which to sue, such as a promissory note, an unpaid account, or a purchase/sale contract, and the statute of limitations has not expired. In many circumstances, a lien may only be important if a debtor has no liquid resources to pay a judgment.

No Assets?

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REIS March Meeting Recap: Future Plans for Cape Coral

Posted in Real Estate

reis_logo_footerOn March 8, 2016, the Real Estate Investment Society of Southwest Florida (“REIS”) held its monthly luncheon with keynote speaker Cape Coral Mayor Marni Sawicki providing an insight as to her vision for the future of Cape Coral.

What Lies Ahead?

Mayor Sawicki emphasized the message that Cape Coral should no longer be considered “Cape Coma” and elaborated on the planning efforts for several new and exciting projects such as Bimini Basin. She shared that there has been a 50% increase in building permits. The City has also made an effort to decrease its reliance on its ad valorem tax revenue in case of another real estate catastrophe. Given that 92% of the City’s development is residential, and only 1% of that number constitutes multifamily housing, the Mayor stressed the importance of providing affordable places to live for young professionals and workers who otherwise cannot afford to purchase a single family home.

While the Mayor reminded everyone that Cape Coral is still relatively young and going through its “growing pains” in comparison to the City of Fort Myers, she remained optimistic about the potential growth and infrastructure that will ultimately attract more jobs and businesses to the area.

April REIS Meeting

Management of water resources in Southwest Florida will be discussed by Dan Delisi, AICP, former board member and chief of staff at South Florida Water Management District at the April 12 REIS Meeting. Click here to join the REIS LinkedIn Group.