Legal Scoop on Southwest Florida Real Estate

Legal Scoop on Southwest Florida Real Estate

How the Save Calusa Trust Case and Proposed Legislation Impacts Florida Property Owners and HOAs

Posted in HOA, Judicial Update, Land Use

gavel.jpgThe Florida Marketable Record Title Act (“MRTA”) was enacted in 1963 to simplify conveyances of real property and provide greater certainty to landowners. Generally, MRTA provides that any person holding any recorded estate or interest in land for 30 years or more has title to the land, free and clear of most claims or encumbrances. By eliminating many old and stale title claims, MRTA makes examining title to real property less labor intensive. An important effect of MRTA is that covenants and restrictions may be extinguished 30 years after their creation.

Restrictive Covenants Imposed by Governmental Zoning Approvals Are Not Subject to MRTA

Recently, in Save Calusa Trust v. St. Andrews Holdings, Ltd., et al., Nos. 3D14-2682 & 3D14-2690 (Fla. 3d DCA Jan. 13, 2016), the Third District addressed whether a restrictive covenant that is recorded in compliance with a government-imposed land use approval is a title interest subject to extinguishment by MRTA. The developer in that case sought both a rezoning and an “unusual use” approval in 1967 to create a new golf course development in Miami-Dade County. In a resolution approving the developer’s “unusual use” application, the County’s Zoning Appeals Board imposed a restrictive covenant requiring the property to be perpetually maintained as a golf course. Thereafter, the restrictive covenant was recorded in 1968, and the developer subsequently sold the property. In 2012, after acquiring the subject property and realizing that the golf course was no longer profitable, the subsequent developer/owner filed an action in circuit court to declare the restrictive covenant void, arguing it had been extinguished under MRTA. The Third District disagreed and held that because the restrictive covenant had been imposed through the governmental zoning reclassification approval process, the covenant did not fall within the purview of MRTA’s extinguishing effect.

Impact of Proposed MRTA Amendments

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Faster Permitting in Florida for Certain In-Water Activities

Posted in Environmental, Water

11760095_10204830523298348_6318609551371833609_nSection 7(a)(2) of the Endangered Species Act (“ESA”) requires that each federal agency ensure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of those species. When the action of a federal agency may affect a protected species or its critical habitat, that agency is required to consult with either the National Marine Fisheries Service (NMFS) or the U.S. Fish and Wildlife Service (USFWS), depending upon the protected species that may be affected.

Great News for Property Owners in Southwest Florida

On December 4, 2015 the National Marine Fisheries Service (NMFS) signed the Florida Statewide Programmatic Biological Opinion (Biological Opinion), which was based on NMFS review of the impacts associated with the U.S. Army Corps of Engineers (Corps’) authorization of minor in-water activities throughout Florida.

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Southwest Florida Real Estate Industry Leaders Say “We’re Back”

Posted in Real Estate, Seminars

On January 21, 2016, Certified Commercial Investment Members (“CCIM”), Southwest District, held its 16th Annual Commercial Real Estate Outlook Conference at the Harborside Event Center in Fort Myers, Florida. The annual event was well attended and full of positive projections from local leaders regarding market trends for Southwest Florida’s real estate industry. Land Use Attorney Austin Turner and Real Estate Attorney Michael Lehnert attended and provide the following recap:

The Mayor’s Inside Look at Downtown Fort Myers

The program began with the City of Fort Myers Mayor Randy Henderson providing an “inside look” at downtown. He explained that our community is postured for many robust real estate opportunities in the next decade, such as the development of its urban infill areas. Mayor Henderson seemed confident that the real estate market, both on a statewide and local level, “is back.” He stated that Fort Myers has recently issued permits for private development that will result in $450 million invested into the downtown area. The Mayor also stated that Florida SouthWestern State College (FSW’s) new baseball stadium and potential basketball arena will positively influence the community’s youth.

The Macro Outlook of Florida’s Real Estate Market

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FIRPTA Withholding Increase for Real Estate Buyers

Posted in Real Estate

upward-trend-xsmall.jpgEffective February 16, 2016, recent changes to the Foreign Investment in Real Property Tax Act (“FIRPTA”) will require many buyers to withhold 15% of the purchase price when purchasing interests in real property from foreign sellers.

For those of you who don’t know, FIRPTA is a federal act requiring “foreign persons” to pay income tax on the amount realized from selling an interest in U.S. real property. When someone buys an interest in U.S. real property from a foreign person, FIRPTA requires the buyer to withhold a certain percentage of the purchase price to ensure the Internal Revenue Service (“IRS”) receives its share of taxes from the transfer. While the current laws and regulations require a buyer to withhold 10% in most instances, starting February 16, 2016, FIRPTA will require many buyers to withhold 15% of the amount realized by the foreign seller.

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DRI Development Rights Do Not Automatically Pass with the Conveyance of Title

Posted in Judicial Update, Land Use

caterpillar_front_loader_283346_l.jpgThe First District Court of Appeal’s recent holding in Howard v. Murray, No. 1D14-1996, 2015 WL 6847833 (Fla. 1st DCA Nov. 9, 2015), serves as a cautionary tale for those purchasers taking title to a parcel of real property that has been previously approved as a part of a development of regional impact (DRI).

The Facts

In Howard, the original developer of the 2300 acre Sandestin DRI went bankrupt and the DRI was then fragmented. The initial DRI development order was also amended to allot 550,000 square feet of commercial development rights to a 48.1 acre parcel, 16 acres of which were later sold. The deed’s language granting legal title to the 16 acre parcel made no mention of development rights.

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New Legislation on the Horizon for DRIs in Florida

Posted in Judicial Update, Land Use

mining via Kelly Michals on FlickrAs defined in Section 380.06, Florida Statutes, a development of regional impact (“DRI”) is “any development which, because of its character, magnitude, or location, would have a substantial effect upon the health, safety, or welfare of citizens of more than one county.”

A Brief History of DRIs in Florida

Since the DRI program’s inception in 1972, it has been chipped away by the enactment of numerous legislative exemptions. In 2009, the Legislature enacted an exemption for Dense Urban Land Areas (“DULAs”), which exempted projects from DRI review in eight counties and 243 cities. In 2015, the Florida Legislature attempted to reduce duplicative and burdensome regulation by eliminating the requirement that new developments be reviewed pursuant to the DRI process by only subjecting such proposed developments to the requirements of the State Coordinated Review Process.

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Tidying-Up Lee County’s Land Development Regulations

Posted in Judicial Update, Land Use

gavel.jpgRecently, a number changes to Lee County’s land development regulations have been implemented which may be of significant interest to both the general public and practitioners throughout Southwest Florida.

Changes to the County’s LDC

On November 17, 2015, the Lee County Board of County Commissioners (the “Board”) adopted Lee County Ordinance No. 15-15, which modifies Chapters 10, 12, 26, and 34 of the County’s Land Development Code (“LDC”). This ordinance took effect on November 20, 2015.

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Condominium Association – Requirements to Conduct Electronic Vote

Posted in Condominium, HOA

Digital Online Vote Democracy Politcs Election Government ConcepOn October 26, 2015, the Division of Florida Condominiums, Timeshares, and Mobile Homes approved a proposed rule to amend and supplement the Florida Administrative Code provisions regarding condominium associations’ voting and elections. The proposed rule provides condominium associations with the option to allow the unit owners to vote using an online system, as an alternative to the traditional paper ballots.

While the language of the rule may change before it becomes final, as it stands, the following must occur before a condominium association may utilize an online voting system:

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The Land Use and Environmental team at Henderson Franklin is thrilled to welcome Austin Turner!

Posted in Land Use

Turner 2015 WEBAustin joins us as a recent graduate from FSU College of Law after interning with our firm last summer. Austin has already been busy posting some great content to this blog (here and here) so look for more great posts as he settles in. Please join us in welcoming Austin!

Austin served as a summer associate with Henderson Franklin in 2014. While in law school, he worked as a law clerk at a large land use and environmental law firm located in Tallahassee, Florida. Austin also spent time during law school at the Florida Department of Environmental Protection working pro bono at the Defense Section of the Office of General Counsel.

Austin received his undergraduate degree from the University of Central Florida (B.S., 2012) and his law degree from Florida State University College of Law (J.D., summa cum laude, 2015). He can be reached at 239.344.1178 or via email at


Understanding Home Ownership in a Community Development District

Posted in Condominium, HOA, Real Estate

Mortgage contractIf you own or are planning to buy a home in a “CDD” and aren’t sure what that means, this post is for you. A community development district, often referred to as a “CDD,” is a special purpose unit of local government created under Florida law, for purposes of financing, constructing, operating and maintaining community-wide infrastructure, improvements and services for the benefit of the properties within its boundaries. Examples of some of the types of improvements that might be included within a CDD are stormwater management systems, conservations areas, roadways, street lighting, and landscaping. Some CDD’s also own and operate utilities and recreational facilities such as clubhouses, swimming pools, and parks.

How does a Community Development District Operate?

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