If you’re a regular reader of this blog (and I hope you are, or will become one!), you will know that many of my posts, over the years, have to do with property rights. An important component of property rights is valuation of the property right taken, or at stake. Today, as part of my series with local appraisers, I am interviewing Matt Simmons, an appraiser and principal with the firm of Maxwell, Hendry & Simmons, LLC.

Carlos: What do appraisers do?

Matt: At the core, we value the bundle of rights inherent in real property. We typically determine the value through application of one or more commonly accepted approaches to value: the Sales Comparison, Cost, or Income approach. But within each approach the nuance of the overall rights remains the value driver. The acronym DUE encompasses the fundamental rights most fee simple real property possesses. These are the rights of disposition, use, and exclusion. When an action (governmental or otherwise) impacts one of these rights, the value of the property is almost always impacted.

Carlos: What made you want to become an appraiser?

Matt: Like many professionals, I was introduced to the profession through a friend. I began working in appraisal data entry when I was 19 and gained my initial trainees license the following year. I’ve always had an interest in real estate and the opportunity to analyze properties, solve complex valuation issues, and build a real estate centered business is incredibly rewarding.

Carlos: How do you work with attorneys in property rights cases?

Continue Reading Meet the Appraiser: Matt Simmons

As of January 1st of 2017, it has been reported that the total value of real property in Lee County increased for the fifth consecutive year to $105.6 billion (nearly 9% higher than 2016 values).

With this year’s Truth in Millage (“TRIM”) Notices just around the corner (typically mailed by the Lee County Property Appraiser in mid-August), one recent legal opinion highlights the nuances of remedies available to the property owner—and the Property Appraiser—in the event assessed values are contested.

Background on Florida’s “Save Our Homes” Doctrine

For real property that has been classified as a “homestead” in Florida, the Save Our Homes provision of Section 193.155(1), Florida Statutes, allows for an annual increase of only 3% in the assessed value of property, or the yearly increase in the Consumer Price Index (CPI), whichever is less. Moreover, under 193.155(2), Florida Statutes, if the capped value exceeds the market value in a given year, the capped value will be reduced to the market value.

Nikolits v. Haney

Continue Reading Homestead, Save Our Homes, and Corrections to Assessed Value: Are You Ready for Your 2017 Property Taxes?

What do they have in common? Nothing…except that when I was getting a new set of tires put on my car, I had time to read Murr v. Wisconsin, the recent U.S. Supreme Court 40-page decision in a property rights case involving a regulatory takings analysis.

Facts

The facts of the case are pretty simple. The Murrs purchased Lots E and F separately in the 1960s, transferring Lot F to a family plumbing business, but keeping ownership of Lot E in their own names. The Murrs transferred Lot F to their kids in 1994 and Lot E to the kids in 1995. The lots each had less than one acre available for development. The Murr kids brought the lots under common ownership (in other words, the kids owned both lots, unlike the parents, who owned one lot through a company and the other lot as individuals).

Once under common ownership, state and local rules forbidding separate sale or development of the lots came in to play. The Murr kids wanted to sell Lot E as part of an improvement plan for both lots, and requested variances from the local zoning authority. The zoning authority denied the variance request, and the state courts affirmed the denial of the variance request.

Continue Reading A New Set of Tires and the Latest Supreme Court Case on Property Rights

It’s an old saying, but it’s true in life and in court, as illustrated in a recent takings decision, Town of Ponce Inlet v. Pacetta, LLC, et al. The Town appealed “a multi-million-dollar” judgment on an inverse condemnation claim. Like most takings cases, this one has a long and confusing history.

The property owners had purchased ten adjoining parcels, seeking to develop a waterfront project. The Town, however, amended its comprehensive land use plan, leaving the property owners unable to develop the ten parcels as contemplated.

First Lawsuit

The property owners sued the Town, challenging the amended comprehensive land use plan. The property owners successfully argued, at both trial and on appeal, that the ten parcels should be treated as a single 16 acre parcel.

Second Lawsuit

Continue Reading Actions Speak Louder Than Words

Box stores won a victory in Palm Beach Gardens, Florida, recently. With the assistance of Henderson Franklin’s Summer Associate Kristen Schalter, we wanted to share the facts and impact of the Sears, Roebuck & Co. v. Forbes/Cohen Fla. Props., L.P. (Fla. App., 2017) case for those involved in commercial leasing.

Background

On July 12, Sears Roebuck (“Sears”) prevailed over the City of Palm Beach Gardens (“The City”) and the owner of the Gardens Mall (“Forbes”) in a commercial sublease dispute involving a violation of the store’s substantive due process rights under the Florida and U.S. Constitutions and unconstitutional impairment of contract.

The Sublease

In 1987, Sears Roebuck entered into a thirty-year lease with Forbes. Sears desired to sublease part of its store in the mall to Dicks Sporting Goods in 2011. Forbes later sent a letter to Sears stating that Sears could not sublease to Dick’s Sporting Goods because Sears had no right to sublease, the sports store lacked signage rights, and Dick’s Sporting Goods “did not belong” at the mall.

Resolution 20-2012

Unbeknownst to Sears, Forbes requested the City enact a resolution granting mall owner (Forbes’) approval over subleases and store modifications. Forbes contributed to the drafting process. The City passed Resolution 20-2012 (“Resolution”) which contained no criteria or grounds for approving or denying of any of the listed modifications or proposed subleases and heard no testimony regarding the Resolution.

Holding

Florida’s 4th District Court of Appeals ultimately agreed with Sears, finding that Resolution 20-2012 unconstitutionally impaired Sears’ right to contract with Dick’s Sporting Goods because it gave unilateral approval to the City and Forbes without specific criteria, which allowed Forbes to arbitrarily deny Sears’ sublease. Most importantly, the court stated the Resolution lacked a legitimate interest for a public purpose and no rational basis. To the court, the existing City Planned Unit Development already accomplished the public purpose of the Resolution.

Accordingly, the court held that Sears had a right to sublease to Dick’s Sporting Goods, that the City had deprived Sears of substantive due process, and awarded Sears reasonable fees and costs as the prevailing party.

Future Action

At trial, Sears conceded that the sublease to Dick’s Sporting Goods would require municipal approval through waivers because the plans for signage did not comply with the City’s zoning standards. However, Sears noted regular industry practice involved working with municipalities obtain approvals and waivers for signage. It will be interesting to observe whether or not the City grants the waivers for the signage now that it has lost to Sears at trial, especially since Sears’ lease is up in 2018.

Take-Away

Always be sure to determine if governing ordinances provide sufficient criteria for unilateral decision-making, otherwise there may be a lurking claim that the decision is arbitrary and the ordinance could be unconstitutional.

 

Photo Courtesy of Wikimedia Commons

According to The American Heritage Dictionary, Second College Edition, the word “fight” has several meanings, including

[t]o stand up against something or assert oneself.”

Recently, as a nation, we celebrated the 241st anniversary of the Declaration of Independence. We are justly proud of that independence. The signers, and other heroes, stood against tyranny and asserted themselves for liberty.

It took a fight to achieve that independence.  It has taken many other fights since then to preserve it.

Continue Reading Fight for Your Rights

pexels-photo-96612In recent years, Condominium and Homeowner’s Associations have become a target for negligent security lawsuits and claims. Typically, a resident or guest of an Association is a victim of a violent crime and the crime victim later sues the Association. While we discussed this previously, we wanted to provide an update after speaking with Henderson Franklin’s premises liability litigation partner, Traci McKee, for additional thoughts on what Associations can do to reduce liability.

Can property owners be liable for the criminal acts of third parties?

Unfortunately, the answer is “yes.” In a negligent security claim, the crime victim claims that the Association failed to implement reasonable security measures which would have prevented the crime. In most instances, the injury to the victim is severe resulting in a large potential exposure to the Association.

Under Florida law, landowners, including Associations, owe residents and guests a duty to take reasonable steps to protect against foreseeable crimes. Whether an Association’s safety measures were reasonable is typically a question for a jury. To determine whether a particular crime was foreseeable usually depends upon multiple factors such as past crimes at or near the property, and an Association’s knowledge of dangerous propensities of an individual.

Continue Reading Negligent Security Claims: Reducing Liability for Associations

clock-2029613_1280 With the turnover of volunteer homeowner’s association (“HOA”) board members over time, it is not surprising that certain important long-term issues may be overlooked. There is one very important law, however, which board members may not be aware of that can eliminate an HOA’s ability to enforce its restrictions.

I am often contacted by an HOA board at the last minute before their restrictions “expire” under this law and even sometimes after they expire. Below is a breakdown of the two different processes an HOA must follow to preserve the restrictions before they expire or, if the deadline has been missed, to revitalize the restrictions.

What is the law and why?

The Marketable Records Title Act (“MRTA”) is a Florida law designed to eliminate “stale” recorded claims that affect the title to real property, such as old recorded leases for which the beneficiaries have long departed or dissolved. Without MRTA, all of these documents still have to be shown on title commitments and policies even though they may have long since become irrelevant and unused. Unfortunately, there isn’t an exemption to save old (and still active) association covenants unless the affirmative steps are taken to preserve them.

What does it mean to HOA’s?

Continue Reading HOA’s: Your Restrictions Have an Expiration Date

know the rulesBeginning July 1, 2017, Florida community associations will have to comply with more burdensome estoppel requirements.

The 2017 Florida legislature just recently passed a new law that will require associations to comply with a request for an estoppel certificate within 10 business days. If they fail to do so, they will forfeit their right to charge a fee for the preparation and delivery of the document.

Furthermore, the fee that an association may charge is now strictly regulated. The fee is capped at $250 if there are no delinquent amounts owed to the association for the applicable unit or parcel, or $400 if a delinquent amount is owed. However, associations may charge an additional $100 if an expedited request is made, and the association delivers the estoppel within three (3) business days after the request.

In addition to the changes to the timeframe and fees related estoppel certificate issuance, the new law will require associations to provide more information than previously required. Associations will have to provide, among other things, information about parking or garage spaces, any open violations noticed to the owner or mortgagee, and contact information for all insurance maintained by the association.

While the law appears strict on its face, the intent behind the law is to provide more uniformity to the estoppel process in order to help buyers and sellers expedite their closings.

If you or your association have any questions about this new law, please give me a call at 239- 344-1231 or email me at michael.lehnert@henlaw.com.

tax.jpgWith Florida’s 2017 Regular Session officially adjourned on May 8, 2017, only 203 bills (of the total 1,606 general bills filed) survived both chambers of the Legislature.

From the handful of legislation that ultimately passed this year, Joint Resolution CS/HJR 21 was enacted. This resolution proposes an amendment to the State’s Constitution that would limit a local government’s authority to assess non-homestead real property for purposes of ad valorem taxation.

Background

Under Florida’s Constitution, ad valorem taxation is expressly reserved to local governments. The state is prohibited from levying ad valorem taxes on real and tangible personal property.

When preparing an annual assessment, the State Constitution also generally requires that all property be assessed at just value (i.e., market value) on January 1st of each year. Thereafter, such assessments are used to calculate property taxes to fund counties, municipalities, district school boards and certain special districts.

Florida’s Existing Limitations on Assessments for Non-Homestead Property

Continue Reading Florida Voters to Consider Permanent Cap on Annual Non-Homestead Property Tax Assessments