iStock_000015122897XSmall.jpgAssociation boards frequently ask what recourse they have against owners who fall behind on paying assessments, or violate other provisions of an association’s governing documents. While most associations’ governing documents provide for the right to fine owners and place a lien on their property, not all boards are aware that they may also suspend owners’ rights to use common elements or facilities.

What Rights Can Be Suspended?

Continue Reading Can an Association Suspend an Owner’s Right to Use Common Facilities?

IMG_3202Relatively recently, sites like VRBO have revolutionized how people travel. They also have made it easier for the average person to rent out their home without the need for professional assistance.

Are you considering renting your second home or condo during this fast-approaching Southwest Florida tourism season? If so, have you considered that you might be fined if you don’t have a license?

What You Need To Know

Florida law requires anyone in Florida renting a home to guests more than three times a year for stays which are less than 30 days to have a license. This means most of the people listing their homes on VRBO or otherwise advertising their house as available for rent to the public need to get a license from the DBPR- Division of Hotels and Restaurants. Continue Reading What You Need to Know if You Are Considering Signing Up with VBRO

matthewsimmons1As Co-Chair of the Lee County Bar Association’s Land Use and Governmental Law Section, I recently had the privilege of sitting down with Matt Simmons, State-Certified Residential Real Estate Appraiser and partner at Maxwell Hendry & Simmons, after he spoke at our group’s July luncheon. Matt shared so much valuable information with us (no pun intended) that I hoped to capture some of that knowledge to share here. Given the importance of the real estate market to our community, it is nearly impossible to distill the wealth of data Matt and his firm have in a short blog. But, it’s always fun to try!

Q: You have great data to share, and you mentioned that often the data can be skewed if viewed in isolation. What do you see as the most misunderstood information reflecting the SWFL market?

Continue Reading Insight into the SWFL Real Estate Market: Q&A with Matt Simmons

Property Rights Flickr Kax VorpalLet’s take these in reverse order.

Do you own real estate?

If the answer is “Yes,” then you should care because you, as a property owner, hold a number of property rights, known as a “bundle of sticks.” If the government, or a private entity with the power of condemnation, infringes on one or more of your property rights, then you may have a claim for inverse condemnation, if certain other factors are met.

What is “inverse condemnation?”

Continue Reading What is Inverse Condemnation and Why Should You Care?

This year, on two separate election days, Florida voters will be given an opportunity to vote on two different constitutional amendments.

Generally, Amendments to the Florida Constitution must be approved by at least 60 percent of voters to pass.

Amendment 4: Florida Tax Exemptions for Renewable Energy Measure

At the primary election on August 30, 2016, Florida voters will have an opportunity to vote for the Florida Tax Exemptions for Renewable Energy Measure, Amendment 4.

Continue Reading Solar Energy is Hot on Florida Ballots in 2016

On July 26, 2016, by a sharply divided 3-2 vote, the Florida Environmental Regulation Commission (“ERC”) approved new changes to Florida’s surface water standards.

What is the ERC?

The ERC is a seven-member board (with two seats currently vacant) that is tasked with setting the standards and rules for Florida Department of Environmental Protection (FDEP) relating to air pollution, water quality, and waste management.

Florida’s Human Health Criteria

Continue Reading Environmental Regulation Commission Approves New Human Health Criteria Rules

8293998585_d02b699ef7_q.jpgReader demand brings you this update. Since our last update much has taken place. The design phase of the Colonial/Lee Boulevard to Shawnee Road segment is scheduled (estimated) to be completed in one year—July 2017. The project schedule that FDOT posted earlier this year shows that construction will begin in fall 2017 and that construction on this segment should be completed in roughly 2020.

If you really want a deep dive into the State Road 82 widening project, see the entire Project Development and Environment Study here. The News-Press provided a summary in March 2016.

If you have any questions about eminent domain, please see my post of March 22, 2016, or feel free to contact me directly at carlos.kelly@henlaw.com.

11745456_10204830522498328_4583304138522897113_n(1)In City of Fort Pierce v. Treasure Coast Marina, LC, No. 4D14-3064, 2016 WL 3087680 (Fla. 4th DCA May 31, 2016), the Fourth District Court of Appeal addressed whether a marina that was owned and operated by a municipality should qualify as a traditionally exempt “municipal or public purpose” for ad valorem tax exemption purposes under Article VII, Section 3(a) of the Florida Constitution.

A Brief Look at Florida’s Constitutional Ad Valorem Tax Exemption for “Municipal or Public Purposes”

According to Article VII, Section 3(a) of Florida’s Constitution, “[a]ll property owned by a municipality and used exclusively by it for municipal or public purposes shall be exempt from taxation.”

Continue Reading Privately-Owned Marinas Are Not Exempt from Ad Valorem Taxation in Florida, but what About City-Owned Marinas?

Incremental increases in statutory civil penalty amounts for statutes administered by the Environmental Protection Agency (EPA) have typically occurred. Dating back to 1990, federal agencies have long been required to issue regulations to adjust their statutory civil penalties to reflect inflation, maintain the deterrent effect of statutory civil penalties, and promote compliance with the law.

The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, (“DCIA”) required agencies to review their statutory civil penalties every four years and to adjust the statutory civil penalty amounts for inflation if the increase met the DCIA’s adjustment methodology. Over time, since the DCIA methodology caused statutory civil penalties to lose value relative to total inflation, the formula was revised.

Accordingly, for the first time, this year’s adjustments to federal statutory civil penalties were calculated using a revised set of criteria under the 2015 amendments to the Federal Civil Penalties Inflation Adjustment Act (the “2015 Act”). Under the 2015 Act, federal agencies are required to adjust the level of statutory civil penalties with an initial “catch-up” adjustment through an interim final rulemaking and, starting on January 15, 2017, make subsequent annual adjustments for inflation. Thus, once a federal agency such as EPA has enacted the one-time catch-up rule, each statutory civil penalty amount will be adjusted every year (rather than every four years) to reflect the inflation that has thereafter accrued. However, there is a cap within the 2015 Act, under which the maximum amount of any initial catch-up increase cannot exceed 150 percent of the level that was in effect on November 2, 2015.

EPA’s New Interim Final Rule

Continue Reading EPA’s New Interim Final Rule Considerably Increases Statutory Civil Penalty Amounts

For the possible record number of attendees at July’s Real Estate Investment Society (“REIS”) luncheon, this won’t be news. For those folks who may have missed it, Assistant County Attorney Michael Jacob and Lee County Planning Manager Mikki Rozdolski walked us through the newly created Pine Island Transfer of Development Rights Program that is not only winning awards but has the potential to offer a workable density transfer program for Lee County developers and landowners.

Among the program’s highlights and innovative concepts is the ability to strip density units from qualifying land in Greater Pine Island and use “off-island” to qualifying receiving lands at a 1:2 ratio. For those looking to increase commercial square footage, the program also allows for the conversion of one (1) density unit to 10,000 square feet of commercial retail and office space. Attorney Jacob noted there is no limit to this conversion (i.e. if your project needs an additional 30,000 square feet, all you need is three (3) density units).

Another novel aspect of this program is that the land from which you take the units does not necessarily lose all economically viable use merely by participation in the program. An example Planning Manager Rozdolski provided was that you could strip off the development units from eligible property, but use that same property for limited agricultural uses, like growing mangoes and then selling those mangoes from a farm stand on the property. Clearly this incentivizes participation in the program since the landowner benefits from selling the units but continue to receive economic benefit from the property as well as general use and enjoyment of the property. This is in stark contrast to most other attempts at a TDR program where landowners remove development rights and essentially lose any benefit of owning the property.

The good news for anyone who wasn’t with us at REIS (as full disclosure, as President this year I am thrilled at the great attendance we’ve enjoyed this year and appreciate everyone coming!), the county has done a phenomenal job at getting the word out about this program and making information as accessible as possible. Head on over here to get additional information and dig into the myriad of innovative and inventive aspects this program has to offer. I think we are all excited to see this program in action!