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

Denzel_Washington_2013In the 1980s, the television show The Equalizer told the story of a trouble-shooter who assisted people in over their heads, with long odds.  Denzel Washington brought the role to the big screen in 2014.  If you’re a property owner, you might need to have things equalized, too, by using a law written to assist property owners.

Think about it.  You’ve put, maybe, your life savings, or retirement money, into a piece of vacant land.  You’ve done your homework.  You’ve found out the comprehensive plan and the  zoning will allow you to open a restaurant, your own neighborhood bar and grill.  You buy the land, submit a development plan, apply for and obtain the necessary permits, and break ground on construction.  Half-way through your project, you get the news that local government has changed its comprehensive plan and re-zoned your property, mentioning it specifically in the new ordinance.  No commercial uses.  No grandfather clause.

Not good.

Continue Reading Equalizing the Odds

landscape-nature-sunset-cloudsFor those unfamiliar with the program and its history, the Lee County (the “County”) Conservation 20/20 program functions as the County’s environmental acquisition and management program that was established to protect our local drinking water, provide nature-based recreational opportunities, protect areas from flooding and provide wildlife habitat.

The Conservation 20/20 program was originally created on July 31, 1996, when the Board of County Commission (the “BOCC”) adopted Ordinance No. 96-12, which created a “Land Committee” to assist in implementing the “Lee County Conservation Land Acquisition and Stewardship Program.” Thereafter, the 20/20 program was substantially amended by Ordinance No’s 96-12, 05-17, and 13-09. Ordinance No. 15-08 was the most recent amendment, which establishes a 15 member appointed citizen’s advisory committee called the “Conservation Lands Acquisition and Stewardship Committee” (CLASAC). CLASAC is tasked with the responsibility of advising the BOCC regarding the acquisition, restoration, improvement and management of conservation lands to meet its enumerated objectives and duties.

It is important to emphasize that, following the adoption of Ordinance No. 15-08, any changes to the County’s 20/20 program must be approved by a “super-majority” vote of the entire BOCC.

Which Lands Qualify for Consideration under Conservation 20/20?

Continue Reading What You Need to Know About the Upcoming Non-Binding Referendum for Lee County’s Conservation 20/20 Program

18050124324_b43e965017_zFollowing two recent incidents, a new emergency rule has been enacted in Florida to ensure that the public, local governments and the Department of Environmental Protection (“DEP”) are notified by all responsible parties following a pollution incident.

Background

On August 28, 2016, Mosaic Fertilizer (“Mosaic”) notified DEP of suspected damage to a gypsum stack liner located at its New Wales Concentrate Plant, which ultimately created a sinkhole that released processed water into the underlying groundwater. While DEP responded to the site within 24 hours to assess potential response actions, the public did not learn of the issue until three weeks later. Also, although DEP reports indicated that no contamination had migrated off-site and therefore no public notification was required under the applicable Florida regulations, many residents remained concerned about the mere possibility of off-site contamination and the timeliness of Mosaic’s public notice.

Thereafter, on September 7, 2016, unauthorized discharges of domestic wastewater were released into Tampa Bay by facilities operated by the City of St. Petersburg, in Pinellas County. Similar to the Mosaic sinkhole, the public and environmental stakeholders expressed concerns about the accuracy and timeliness of information provided to the public by City officials.

Governor Order’s New Emergency Rule

Continue Reading Florida Enacts New Emergency Rule in Response to Mosaic Sinkhole and Pinellas County Sewage Spills

Lease.jpg“An ounce of prevention is worth a pound of cure.” “Penny-wise, pound foolish.” “A stitch in time saves nine.” Few would doubt the universal application of these time-honored pearls of wisdom. Yet when it comes to legal documents, common sense goes by the wayside.

Contract? What Contract?

As a litigation attorney, there have been instances too numerous to count where a potential client calls me about a legal problem. When I ask to review the contract or document at issue, I’m usually met with a response that there is no document or, if there is one, it was not drafted by an attorney. The client then spends thousands of dollars in legal fees correcting a problem that should have been avoided in the first place.

Continue Reading Commercial Leasing Best Practices