cakI grew up out West. A big part of growing up in the West, at least in my family, included Western films. Westerns, like many country music songs, can tell a complicated story in regular, everyday terms. Black cowboy hats and white cowboy hats made it easy to figure out who was on what side!

Probably my favorite Western was The Magnificent Seven. That’s the 1960 version, not the 2016 re-make. The 1960 version tells the tale of seven adventurers, hired by Mexican villagers to protect their community from a bandit, Calvera.  Played by Eli Wallach, Calvera is one of the most fascinating villains in a Western.  Watch this scene where Calvera and his men meet The Magnificent Seven for the first time…his smug contempt comes across loud and clear when he shouts “Do you hear that? We’re trapped, all 40 of us, by these three.” Later, Calvera explains how “easy” he makes it for the villagers:  “With me, only one decision.  Do what I say!”

Sound familiar?  If you are a property owner who has received a notice from a governmental authority that your property is needed for a government project, this might sound way too familiar. But you may want more than one choice. You may not want to do what they say.

Article X, Section 6 of Florida’s Constitution puts some power in your hands. On the subject of eminent domain, Section 6(a) of the Florida Constitution says:

No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.”

Make sure you talk to a lawyer if you receive a notice that someone else wants your property for a project.  Give yourself more than the choice to do what they say.

Please feel free to contact me with any questions or concerns at carlos.kelly@henlaw.com or by phone at 239-344-1326.

Over the past several years, hydraulic fracturing (or “fracking”) has become a very divisive environmental and political issue in many areas of the country. As our society’s desire for cleaner energy has become more of a priority, lawmakers and agencies at federal, state, and local levels have been confronted with determining whether and to what extent the use of hydraulic fracturing methods should be regulated, and whether such activities pose a potential threat to our drinking water sources.

What is Fracking?

Developed in the 1940’s, hydraulic fracturing is a method to extract conventional oil and gas resources found in permeable sandstone and carbonate reservoirs by drilling vertically into rock formations and injecting fluids under high pressures.

Continue Reading The Future of Fracking in Florida

Denny Grimes
Denny Grimes

As a Southwest Florida business professional, your business likely ebbs and flows with the local real estate market. When demand is freely flowing, business flourishes and you can concentrate your focus on accomplishing what is in front of you. However, when it ebbs, businesses often need to consider whether their current trajectory is optimal, or whether they should pivot in order to foster some new opportunities in a slightly different corner of the market.

While we all know the market is generally unpredictable, on February 22, Market Watch 2017 will have three local, well-respected real estate experts discussing the state of the Southwest Florida real estate market. Hearing what they have to say could be the key to putting you ahead of the curve in 2017.

In addition to Randy Thibault presenting, Denny Grimes will touch on whether now is the time to buy or the time to sell? In spite of generally positive news reporting many real estate markets across the country are experiencing a slow down or “shift” as it’s called and its effects are being felt in SW Florida. Denny will report why 2016 was an “off year” and will give his predictions for 2017.

Stan Stouder photo
Stan Stouder

Stan Stouder will talk about changes in the commercial real estate market, such as:

  • What are some national trends and how will they impact our local market?
  • Is the local apartment market overbuilt?
  • What do the changes in permitting mean?
  • What Was, What is and What’s Next for Commercial real estate in SWFL.

Having big data is of little value, but knowing what the data means is invaluable.  Stan knows and will be freely sharing that insight at this year Market Watch.

As a sponsor for the event, Henderson Franklin is anxious to hear what these three experts have to say and wants to make sure all Southwest Florida professionals, home buyers and sellers, and investors aware of this exciting opportunity! To register, click here.

For those of you who missed it, Thursday’s 2017 Commercial Real Estate Outlook Conference offered exciting sneak peeks into new, major downtown Fort Myers developments, insightful discussions on the impacts technology and millennials are having on the real estate industry, and a general feeling of optimism toward 2017’s real estate market.

While blogging etiquette won’t allow me to recount all of the intriguing insights offered by the expert presenters, here are a few takeaways:

  • On the heels of Donald J. Trump’s Presidential Inauguration, Lawrence Yun, Chief Economist for the National Association of Realtors, forecasted that over the next year there will be almost no reason to worry about another housing market bubble and opined there will be less than a 5% chance of another national recession (according to numerous economic indicators). In addition, Dr. Yun explained that he anticipates a slight rise to our Country’s GDP under the new administration, from a recently “sluggish” average of 2%, to approximately 2.2%.
  • The landscape of downtown Fort Myers is about to significantly change over the next few years as Mainsail Lodging and Development puts in a hotel and overhauls the Harborside Event Center, Dwell Florida erects The Place on First – a high-rise luxury condo and retail development on the corner of First Street and Jackson Street, and Fischler Property Company constructs First Street Village – a live, work, and play development on the corner of West First Street and Altamonte Avenue.
  • To meet the non-traditional demands of the up and coming millennial workforce, office environments are steadily deemphasizing large individual offices in favor of smaller individual spaces and more, larger collaborative work spaces.
  • While emerging technologies are certainly changing the way commercial real estate business is done, inventors haven’t found a way to replace the investor’s desire to make a personal connection with a live, local realtor before signing on the dotted line.

Thank you to all of this year’s speakers for their useful insights into the 2017 real estate market and to Bev Larson for producing such a great event. We look forward to Commercial Real Estate Outlook 2018!

hacker-1944688_1280January is the month of the fresh start. It brings in the New Year and the inevitable “I am going to be better about (insert your commitments here) this year” commitments everyone makes to themselves.

Building on our end of year recommendations, I’d like to offer another “I am going to be better about” to your list.

In 2016, the real estate industry saw a big spike in the amount of attempts fraudsters made to hijack real estate transactions. While we have undertaken significant precautionary measures to make sure our clients and transactions are protected from these attempts, we would like to offer some advice to you to help you avoid any fraudsters’ attempts to detract from your ability to fulfill your New Year’s commitments.

To help protect your real property and your identity, go to your county clerk’s website and perform a public records search for your own name. If you see a transaction or document you don’t recognize, this could be an attempt by someone to steal your identity or assets.

If you find yourself in the unfortunate situation where someone has made a fraudulent attempt on your identity or assets, please give us a call, and we will help you sort it out. Hopefully, you don’t find yourself in those shoes, and instead, you find plenty of time and energy to follow through with your personal “I’m going to be better about.” Good luck!

As usual, the year has flown by and the New Year is upon us. You might remember from my last post, that we took a Christmas-flavored look at takings with St. Nick. Now it’s time to look ahead. When my wife and I were walking in a local nature preserve on Christmas Day, I took a picture of a fantastic tree that I named the “Animals’ Staircase.”

As you can see, the Animals’ Staircase ascends gradually and then with increasing steepness.  It was easy to picture a small animal running up the Staircase to get a better view of something.

Continue Reading Looking Ahead to 2017 in Takings Law

imac-965325_1280As 2016 closes, we reached out to our team and asked them to share some of the most notable issues in real estate and land use & environmental law:

Residential Closing Best Practices Requirements by Amanda Barritt

2016 saw the CFPB regulations and Best Practices requirements move into high gear with respect to financed residential closings. Lenders, attorneys, and title companies have invested a lot of time and money coming into compliance. However, the results of the national election, along with the ruling in the case, PHH Corporation v. CFPB, are causing these players to question whether any, or all, of the CFPB lending regulations will be done away with. For now, Melissa Murphy, Senior Vice President and General Counsel of the Attorney’s Title Fund, suggests slowing down on making significant investments in Best Practices, while continuing to make sure to comply carefully with RESPA, Section 8(c) requirements as to affiliated business arrangements until we see what happens in 2017.

Condo & HOA: Fire Sprinkler Retrofitting by Molly Maggiano

As the year winds down to an end, the opportunity for condominium associations to opt-out of fire sprinkler retrofitting is also coming to a close. The subject of fire sprinkler retrofitting proved to be a hot topic during the course of the year, due in part to communications put out by the Florida Division of Condominiums regarding the applicability of the obligation to retrofit, which left many associations who thought they were exempt confused as to whether they were subject to retrofitting, whether they should conduct an opt-out vote, and the implications of such a vote. This resulted in an abundance of frantic calls to association attorneys who were also dismayed and left to wonder whether the Division would clarify its statement. Thankfully, the Division did correct its communications, but the ordeal emphasized the importance and benefits of having a qualified association attorney on hand in crucial situations such as this.

2016 Significant Foreclosure Decisions by Shannon Puopolo

Foreclosure filings continued to decline in 2016. Notwithstanding, some significant foreclosure decisions came out this year. Below is my “Top 3” List:

  • The Florida Supreme Court affirmed the decision of the Fifth District Court of Appeal in Bartram v. U.S. Bank, N.A., holding that where an initial foreclosure lawsuit is dismissed by the court, such dismissal does not trigger the application of the 5-year statute of limitations, which would otherwise preclude a lender from filing a second action. Rather, the court held the lender is only prevented from suing on installment payments that are more than 5 years old.
  • The Eleventh Circuit Court of Appeals held in Failla v. Citibank, N.A. that where debtors file a statement of intent to surrender their residence in Chapter 7 bankruptcy, they must also waive any defenses or counterclaims raised in a pending state court foreclosure action.
  • The Fourth District Court of Appeal held in Ober v. Town of Lauderdale-by-the-Sea that the lis pendens statute does not discharge liens that are recorded and based on conduct which occurs after the date of the final judgment of foreclosure, even if such liens attach to the real property prior to the date of the foreclosure sale.

Land Use Law by Austin Turner

It was an exciting year for land use and environmental law at both a state and local level. On January 21st, CS/CS/SB 552 was enacted to comprehensively address issues such as Everglades restoration. In response to threats like the Lake Okeechobee algae blooms and the Zika virus, the Governor declared several States of Emergency which led to permit extensions. Recently, a supermajority of Florida voters approved one of the two renewable energy measures establishing a constitutional ad valorem tax exemption for solar power. Locally, Lee County residents approved a non-binding referendum for Lee County’s land acquisition and stewardship program, “Conservation 20/20.”

On behalf of the Real Estate and Land Use team at Henderson Franklin, we wish you and yours a very Happy Holiday season and New Year. Please enjoy our 2016 e-card benefitting the Golisano Children’s Hospital of Southwest Florida:

 

 

As we wind down to the end of 2016, I wanted to offer a few gifts to you and your family or business from our family at Henderson Franklin. Below, I have included a few things we have talked about this year that you may want to keep in mind as we move into 2017:

  1. When using VRBO or Airbnb to rent your home to another family this holiday season, be cognizant of the frequency and duration limitations to avoid having the state attorney’s office drop a misdemeanor sized lump of coal in your holiday stocking.
  1. Remember that the restrictive covenant imposed by the governmental zoning approval allowing Santa to park his sleigh on the roof won’t be extinguished by MRTA. You’ll have to find a different way to stop Santa from getting into your chimney and eating your cookies.
  1. If, during this holiday season, you realize the market has bestowed upon you the gift of significant home appreciation, consider updating your title insurance policy to help ensure the title defect Grinch doesn’t steal your gift in the future.
  1. Community Associations, in particular, be careful of who you characterize as naughty or nice when reviewing purchase or lease applications. You wouldn’t want HUD to leave a gift-wrapped discrimination suit under your tree this year.

From our family to yours, we hope you all have a wonderful holiday season! By the way, if you talk to Santa, please tell him to email me at michael.lehnert@henlaw.com. I am still waiting to hear if he received my wish list this year. Thank you.

photoIf the sounds of Christmas music bring feelings of goodwill toward all, family gatherings, Yuletide blessings, you’re not alone. Personally, I always make it an Elvis Christmas, rolling through the same ten Elvis songs for days at a time. Ho ho ho and thank you, thank you very much!

But let’s think of Santa, not just as a bringer of gifts, but as a user of property rights. After all, he lands on your roof. Get any permission for that, Mr. Claus?  What about the wear and tear to the roof?  If a typical adult male reindeer weighs 350 – 400 pounds, eight adult reindeer could weigh 2,800 – 3,200 pounds—over a ton.  Can your roof support that?  (This isn’t even including Rudolph, the sleigh, or Santa himself, who is no reed, weight-wise, according to a number of reports.)

Continue Reading Santa Claus is Back in Town and Make Sure He Pays This Time

Guest post by Henderson Franklin’s Construction Chair, J. Matthew Belcastro, Esq.

5-4-2016 8-11-32 AMFreedom to contract is one of the cornerstones of our system of jurisprudence. As long as the subject of the contract is not illegal or contrary to an established public policy, we Americans can contract in just about any manner we wish.

Yet, all too often when disputes arise in connection with a construction project, we find parties who have no contract or (potentially worse) a contract which is not suitable for the nature of the project and/or the interests the parties wish to protect.

The construction industry is somewhat unique because of the wide range of potential parties and relationships involved in a project: owners/developers, general contractors, design professionals, subcontractors, materials suppliers, lenders, sureties, just to name a few. These numerous relationships make it all the more important to protect yourself with appropriate contractual provisions.

Continue Reading What You Need to Know About Construction Contracts to Protect Your Business