Legal Scoop on Southwest Florida Real Estate

Legal Scoop on Southwest Florida Real Estate

New Florida Law Benefits Property Owners Subjected to Unlawful Exactions

Posted in Judicial Update, Land Use

The story behind this new cause of action

gavel.jpgThis legislation expands the Bert J. Harris Jr., Property Rights Protection Act (which we have recently discussed here and here) and codifies the 2013 United States Supreme Court’s Koontz decision. Following the Koontz case, a local government’s power to condition the approval of proposed development by demanding property or monetary exactions has been significantly curtailed.

Effective October 1, 2015, Florida has crafted a new cause of action under Section 70.45, Florida Statutes, which will provide relief for property owners who have been subjected to such an unlawful exaction.

How it works

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The clock is ticking if you want a permit extension under this Florida law

Posted in Judicial Update, Land Use, Real Estate

clock via George Vnoucek Flickr Creative CommonsIn 2011, Florida enacted section 252.363, Florida Statutes, a law which grants certain permits and authorizations an extension for the amount of time a declared state of emergency was in effect, plus an additional 6 months.

Important Executive Orders

Following Governor Scott’s recent declarations of emergency, many throughout Southwest Florida now have an opportunity to extend the expiration dates of their permits. On August 28, 2015, following the threat of Tropical Storm Erika, Governor Scott declared a state of emergency in Executive Order 15-173 which applied to the entire state of Florida and will last until October 27, 2015. Previously, on August 6, 2015, Governor Scott had also declared a state of emergency for Dixie, Hillsborough, Pasco, Pinellas, and Taylor Counties that will last until October 5, 2015.

What does this mean for you?

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Helpful Tips for Reviewing your TRIM Notice

Posted in Property Tax, Tax

tax burdenThose owning real property in Lee County have likely received their annual TRIM (Truth in Millage) Notice. From my experience of practicing in this area of the law, I have found that some questions continue to repeat every year once taxpayers receive their TRIM Notices.

To help taxpayers understand what the TRIM means for them, I thought it would be helpful to go through a few quick tips for what to look for when reviewing this important document: Continue Reading

New Definitions of “Property Owner” and “Real Property” Affect Florida Law as of October 1, 2015

Posted in Agriculture, Eminent Domain, Judicial Update

On October 1, 2015, various revisions to the Bert J. Harris, Jr., Private Property Rights Act will take effect. On October 1, among other things, the definitions of “property owner” and “real property” will change as set forth in Chapter 2015-142 Laws of Florida. The changes may limit the reach of the Second District Court of Appeal’s decision that expanded the rights of property owners in Southwest Florida since “property owner” will mean “the person who holds legal title to the real property that is the subject of and directly impacted by the action of a governmental entity.” The FINR II, Inc. v. Hardee County decision held that the Bert Harris Act provided a cause of action to owners of real property “inordinately burdened and diminished in value due to governmental action directly taken against an adjacent property.” With the change in definition effective October 1, it seems the impact of the FINR II decision may be short-lived.

We’ll be sure to keep you updated!

What Options Do Owners Have to Take Possession of Real Property in Florida?

Posted in Real Estate

iStock_000019598645_MediumWith increasing frequency, I am receiving calls from people who want to remove someone from possession of a residence owned by the caller. Invariably, the caller insists that the possessor should be evicted, but upon closer inspection, the claim really isn’t an eviction action. In this post, I will explore the three similar, but distinct, actions available for possession of real property in Florida.


Probably the most familiar claim for possession is one for eviction. In its most basic form, an action for eviction results when the occupant of the property has failed to pay rent to the property owner. Florida Statutes Chapter 83 governs actions for eviction. An action for eviction requires a landlord-tenant relationship. That relationship is typically established by showing that the property owner and occupant have signed a lease agreement for the property. Even in the absence of a written lease, a landlord-tenant relationship can be established by showing that the tenant made periodic rent payments (weekly, monthly, bi-monthly, etc.) for the privilege of occupancy. Keep in mind that rent need not be money, but in certain circumstances may be goods or services. If there is no landlord-tenant relationship, then there cannot be an eviction. An eviction action proceeds under an expedited (summary) procedure, so a plaintiff usually can obtain a judgment of possession within 60 days.


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Impact of the Supreme Court’s Ruling on Same Sex Marriages on Homestead and Property Rights

Posted in Judicial Update

Wedding Rings with Gay Symbols.As the laws change, we strive to share how they will affect our clients and readers of this blog. Thus, we are pleased to share the following guest post by Florida Bar Board Certified Wills, Trust and Estate Planning Attorney Eric Gurgold.

On June 26, 2015 the Supreme Court of the United States, in Obergefell v. Hodges, Director, Ohio Department of Health, in a five to four opinion ruled to allow same sex marriages in every state. The Court held that the 14th Amendment requires a state to license a marriage between two people of the same sex and to recognize the marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. The Court said the 14th Amendment concepts of due process and equal protection require states to treat same sex couples the same as opposite sex couples with regard to the fundamental right of marriage. The ruling does not apply to civil unions or other arrangements where the couple is not lawfully married.

Effect on Homestead Provisions

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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

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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

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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

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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