Legal Scoop on Southwest Florida Real Estate

Legal Scoop on Southwest Florida Real Estate

Checklist to Preserve and Enforce Your Lien Rights

Posted in Lien Law

construction-money.jpgIn an April 9, 2015 post, Scott Beatty gave some great tips to owners on how to avoid paying twice for labor, services, or materials provided on a contraction job. This post looks at another facet of the same issue and provides tips to lienors on how best to preserve and enforce their lien rights on a construction job.

Although Florida’s construction lien law is dense, nuanced, and rife with pitfalls, adherence to the following steps will cover your necessary bases in the vast majority of situations where you are working on private/non-government owned property:

Before You Begin Work

  • Ensure the property owner has recorded a proper Notice of Commencement.
  • Ensure the property owner is aware you are working on the owner’s property.
    • If your contract is directly with the owner, the owner obviously has general notice of your presence on the job, but your contract with the owner should (and must in certain situations) include within it the lien law notice provision required by Section 713.015, Florida Statutes.
    • If your contract is not directly with the owner, you must provide a formal Notice to Owner within the earlier of the following:
      • Before or not later than 45 days of first performing work on the jobsite (whether furnishing labor, services or materials); or
      • Before the making of final payment in reliance upon a final contractor’s affidavit.

After the Work is Complete

  • Ensure you timely file your claim of lien. Your claim of lien must be properly recorded within 90 days of last performing work (whether labor, services, or materials), then the claim of lien must be served on the owner within 15 days of recording.
  • Ensure you timely file suit to enforce your claim of lien. Suit must be filed within the earliest of the following:
    • One year from the date of recording;
    • If a notice of contest of lien is recorded, within 60 days of when the clerk certifies it served the notice of contest; or
    • If a 20-day summons to show cause has been served, within 20 days of service of the summons.

Further, if your contract is directly with the owner, you must provide a final contractor’s affidavit at least five days prior to filing suit to enforce your claim of lien.

Print or bookmark this post for use as a checklist before you begin your next job. As I mentioned at the beginning, however, Florida’s construction lien law is dense, nuanced, and rife with pitfalls. Accordingly, if you have any questions about, or would like assistance with, navigating the lien law process now or in the future, take a few minutes to be proactive and consult legal counsel, rather than risk losing the best leverage you have to make sure you are paid on your next job—your lien rights.

Recent Court Decision Expands Rights of Property Owners in Southwest Florida

Posted in Agriculture, Eminent Domain, Judicial Update, Land Use

The Second District Court of Appeal, which covers fourteen counties in West Central Florida and Southwest Florida from Pasco County in the north to Collier County in the south, issued a decision in June 2015 that significantly expands the rights of real property owners in Southwest Florida. In the case entitled FINR II, Inc. v. Hardee County, the appellate court ruled that

the Bert [J.] Harris [, Jr., Private Property Rights Protection] Act provides a cause of action to owners of real property that has been inordinately burdened and diminished in value due to governmental action directly taken against an adjacent property.” (Emphasis added.)

Facts of the Case

Continue Reading

Important Reminders Regarding Disclosures

Posted in Due Diligence, HOA

Mortgage contractIn April of last year, my colleague, David Fowler shared a post about a seller’s obligation in a residential sale to disclose facts or conditions about the property that have a substantial impact on its value or desirability, and that are not easily observable to a buyer. As the post outlined, most of the disclosures are property specific, like the presence of mold or wood destroying organisms, or whether essential components of the home, such as the roof, plumbing or HVAC, are in disrepair. Sellers typically inform buyers of these conditions in a disclosure form usually provided by the seller’s real estate agent. There are, however, other disclosures required by Florida law that are equally as important to a buyer in making an informed decision whether to purchase a home.

Here are some of those disclosures that parties involved in the sale of a residential home should also be aware of:

Homeowners Association and Condominium Association

Continue Reading

How to Pay Twice for Your Construction Project

Posted in Lien Law

I know what you’re thinking. No sensible person would ever pay twice for a construction project. But the following scenario is, unfortunately, an all-too common reality for many property owners:

One day, you’re enjoying the view from the bay windows of your recently completed home addition (or newly constructed home). A small taste of buyer’s remorse begins to fill your mouth, but with a sip of coffee, you quickly cast it aside, knowing that the minor fortune you just paid to your contractor is well worth it. A knock on the door brings your mind back to the present. As you glide across the shiny new hardwood floor and open the door, you are met with a sharply dressed man who, after confirming your identity, hands you a stack of papers and leaves. The words on the papers are filled with legal mumbo-jumbo, but you understand enough to know that a masonry company is suing you for payment, and threatening to foreclose its claim of lien if you do not pay. Certain that this must be a mistake, you call your contractor. Your heart sinks when you hear the dreaded message: “The number you have reached is no longer in service….”

In Florida, the same law that protects construction lienors (contractors, sub-contractors, suppliers and laborers) also protects owners by putting limits on their liability to those very same lienors. Property owners can limit their exposure by ensuring that all payments made to the contractor are “proper payments.” By only making “proper” payments, an owner’s liability will not exceed the contract price (i.e., an owner won’t have to pay twice). To ensure that a payment is a “proper” payment, an owner should follow these general guidelines:

Before making any payment to the contractor, make sure to: Continue Reading

Best Practices for Landlords

Posted in Leasing

Lease.jpgAre you a landlord? It’s a good position to be in, whether you’re a commercial landlord or a residential one. You can build equity in real estate and generate cash flow. Who doesn’t like that?

As a landlord, you’ve probably learned a few lessons, and maybe you’ve even learned some of those lessons the hard way.  Let me know if you’re familiar with these:

Continue Reading

What to Expect Following the Sunset of the Protecting Tenants at Foreclose Act

Posted in Foreclosures, Lenders

iStock_000015122897XSmall.jpgOn May 20, 2009, President Obama signed into law the Protecting Tenants at Foreclosure Act of 2009 (the “Act”). The Act was created during the height of the foreclosure crisis as a temporary measure to protect tenants who entered into a lease without realizing a property was in foreclosure. The Act provided that lenders and third-party purchasers who took title to a property at a foreclosure sale must provide a tenant with a minimum of 90 days’ notice, prior to seeking a writ of possession and evicting the tenant.

Sunset Provision of the Act

The Act was scheduled to expire on December 31, 2012, but the Dodd-Frank Wall Street Reform and Consumer Protection Act extended the sunset provision to December 31, 2014. There was much speculation within the legal community regarding whether the Act would be extended again. On November 21, 2013, the Senate introduced Bill 1761, titled “Permanently Protecting Tenants at Foreclosure Act of 2013,” which sought to indefinitely extend the protections afforded under the original Act, as well as provide tenants with a private right of action against lenders and third-party purchasers who failed to comply with the Act. However, Senate Bill 1761 never progressed forward, and the Act expired on December 31, 2014.

What Happens After the Sunset?

Continue Reading

Lee County Impact Fee Vote Fast Approaching

Posted in Impact Fees

construction-money.jpgAs discussed in my last blog on this topic, impact fee rates in Lee County continue to be a focus for many in the community. At its February 3rd meeting, the Board of County Commissioners (“BOCC”) adopted the proposed rate schedule which included a reduction in road impact fees coupled with a significant increase in school impact fees. After significant input from the community and discussion among the BOCC, Commissioner Kiker moved to adopt an increase in impact fees to 45% of the original rates to take effect March 16, 2015 upon the sunset of the current 80% reduction. The BOCC is now positioned to take a final vote on impact fee rates at its meeting on March 3, 2015 before the current reduction ordinance sunsets on March 13th.

Here are 3 ways you can get involved in this unquestionably important vote:

  • Catch up on all of the happenings related to impact fees and review any related studies, documents, ordinances or even review meeting videos at the county’s website here
  • Call or write the County Commissioners to express your opinion; you can locate your Commissioner by visiting the county map here and view contact information
  • Plan to attend the March 3rd meeting in BOCC Chambers to provide public input

As the Lee County real estate market continues to find its way, the issue of impact fees is unlikely to leave the forefront of economic debate anytime soon.

Homestead Deadline Approaching for Lee County Landowners

Posted in Real Estate

Mortgage contractThe homestead application filing deadline of March 1 is approaching quickly. Below is a snapshot of eligibility and documentation requirements for real property owned in Lee County, Florida.

What is the Homestead Exemption?

The homestead exemption is a constitutional benefit of up to a $50,000 exemption deducted from the assessed value of the property.

Who Is Eligible to File for an Exemption?

Individuals whose names appear on the deed, who reside on the property as of January 1, and who are bona fide Florida residents as of January 1 are eligible to file. To be eligible for the exemption this tax year, an owner must file an Application for Homestead and related documents with the County Property Appraiser no later than March 1, 2015. Only new applicants or those who had a change of residence are required to apply. For individuals who have previously filed for and been approved for the homestead exemption, notices of automatic renewals should be received from the Lee County Property Appraiser in January of each year.

Lee County’s Application Requirements

Continue Reading

Lee County Impact Fee Vote Looming

Posted in Impact Fees

construction-money.jpgThe Lee County Board of County Commissioners (“BOCC”) is kicking off 2015 with substantial consideration of impact fees, with viewpoints expressed by stakeholders on both sides of the issue. At its January 6th meeting, the first of 2015, the BOCC voted to extend the change-of-use impact fee waiver for an additional two-year period. This temporary waiver is now set to expire December 31, 2016 per Resolution 15-01-01. At the following meeting, held on January 20th, the BOCC adopted Ordinance 15-02 which allows a six-month grace period for building permits, mobile home move-on permits, or recreational vehicle park development order applications submitted by March 13, 2015 to receive the current 20% reduced impact fee rate so long as the permit is also picked up by close of business on September 11, 2015.

At its next meeting, to be held February 3rd, the BOCC will once again consider the issue of impact fees for the most significant of these votes as the 20% reduction nears sunset. If the BOCC makes no decision regarding this reduction, the 20% reduction established in Ordinance 13-06 will sunset per its terms on March 13, 2015. This would mean impact fees would begin imposition at the full rate on Monday, March 16. The BOCC could also choose to establish a new reduced rate of collection. County staff have recently recommended a collection rate of 85% for roads impact fees as well as a revised impact fee schedule. If a change to the impact fee collection rate is determined, staff is expected to bring that item back to the BOCC for a final vote with ordinance adoption at the March 3rd meeting.

Given the importance of impact fees to our community, the discussion at the February 3rd BOCC meeting is guaranteed to be rich and likely passionate. Additional information with supporting documentation can be found on the Recent Impact Fee Considerations page of the county’s website.

Permit Extension Notification Deadline Closing

Posted in Judicial Update, Land Use, Zoning

For any development permit holders interested in taking advantage of the two-year extension offered under HB 7023 (codified as Laws of Florida ch. 2014-218), there are some important rules to remember as the notification deadline of December 31, 2014 quickly approaches:

  • The permit you are seeking to extend must expire between January 1, 2014 and January 1, 2016;
  • The extension applies to approvals such as local development permits including development orders, building permits, DEP and environmental resource water management district permits;
  • The extension does not apply to approvals such as Army Corps of Engineers permits or consumptive use water management district permits;
  • If you have previously extended this permit under two (2) of the prior legislative extensions, for a total extension of four (4) years, you cannot utilize this extension provision; and
  • You must provide written notification to the agency who issued the permit by December 31, 2014 (some jurisdictions require a fee while others do not).

Many jurisdictions have information on this extension noted on their websites, or you may check with your consultant or attorney to determine if your permit is eligible for this extension.