It’s an election year, and that means voters have a lot to think about before casting their ballots in the August and November elections. In every election cycle, citizens have the opportunity to go through the initiative petition process for the opportunity to put Florida constitutional amendments on the ballot as ballot measures.

How does the Petition Process Work in Florida?

Below is an overview of a not-so-quick process.

Continue Reading Foresight is 2020: A Look at the Constitutional Amendments on the November Ballot

Oil, gas, and mineral (“OGM”) rights are not uncommon, especially in Collier County and certain areas of Lee County. Unfortunately, outdated OGM leases and rights reservations can often cause a headache for buyers when these issues show up on title. Below are some tips for combating OGM rights issues on your property.

Before the contract is signed

Sometimes, if a seller knows there may be OGM rights on the property, there will be provisions in the contract to account for those rights. Be wary of provisions that limit seller’s obligation to cure issues related to OGM rights. For example, some contracts may provide that seller has an obligation to cure a title defect related to OGM rights only if there is a right of entry. Even if there is no right of entry, an OGM right may still create a cloud on title that would make buyers uncomfortable.

If you cannot reach an agreement for seller to cure the OGM issues, make sure to have a long due diligence period and try to tackle OGM issues early. OGM issues are complex, and removing them from title can be cumbersome.

After the contract is signed

Continue Reading Options for Commercial Property Owners When Handling Oil, Gas & Mineral Rights

At the close of our 95th anniversary year, we turn our attention, once again, to our community. Henderson Franklin’s attorneys, staff, friends and family volunteered to help two organizations this holiday season, Big Brothers Big Sisters of the Sun Coast and Meals for Hope, Holidays Without Hunger in Naples.

Lee County: Big Brothers Big Sisters of the Sun Coast

On Saturday, December 7, 2019, the firm hosted a party for Big Brothers Big Sisters of the Sun Coast at the IMAG History & Science Center in Fort Myers. Nearly 50 “Littles” had a night at the museum with arts & crafts, delicious pizza, scrumptious cupcakes and an early visit from Santa and his helpers.

Since 1968, Big Brothers Big Sisters has been helping change kids’ perspectives and giving them the opportunity to reach their potential. Big Brothers Big Sisters of the Sun Coast provides one-to-one mentoring relationships to children ages 6-18 years old throughout the Gulf Coast of Florida in Sarasota, Manatee, DeSoto, Highlands, Hardee, Charlotte, Lee, Hendry and Collier counties. To learn more, visit https://bbbssun.org/.

Sponsors and Community Partners

We greatly appreciate our community partners who assisted us with the Lee County holiday project, including W. Brown and Sharon Thompson of Pizza Fusion, located at 12901 McGregor Blvd., #5 in Fort Myers.

Pizza Fusion restaurants specialize in organic fare free of artificial additives, such as preservatives, growth hormones, pesticides, nitrates and trans fats. The Pizza Fusion brand proudly offers health conscious alternatives. Learn more about Pizza Fusion at http://pizzafusion.com/fortmyers/.

Smallcakes Cupcakery and Creamery, 11150 S. Cleveland Avenue, Fort Myers Smallcakes Fort Myers is owned and operated by Don and Tonyia Moyer, a local couple dedicated to bringing a memorable cupcake and creamery experience.

Smallcakes has been featured on the Food Network’s “CUPCAKE WARS”, an appearance on ABC’S hit daytime talk show, “THE VIEW”, and was selected as “Must Try Cupcake Shop” by USA TODAY. To learn more about Smallcakes Fort Myers, visit https://www.smallcakesfortmyers.com/.

Collier County: Meals for Hope Holidays Without Hunger

Members of Henderson Franklin’s Naples office, along with a myriad of community members, participated in the December 14, 2019, meal packing event at North Naples Middle School.

Meals for Hope provides healthy meals that taste good and makes the meal packing process affordable and accessible to sponsors and hosts so that they can feed as many families as possible. They work diligently to source nutritious, non-perishable ingredients from trusted sources and establish long-term partnerships to keep pricing low. To learn more on how you can help or sponsor a meal-packing event, please visit https://mealsofhope.org/.

To view the “behind the scene” photos, please visit our Facebook page.

Our warmest wishes for a wonderful holiday season!

I am often asked by association boards if the board can meet in “executive session” to discuss a sensitive topic, such as a personnel matter or dispute with an owner or neighborhood association, without members present.

Florida Sunshine Laws

Continue Reading Condominium and HOA Boards Beware of Holding “Executive Sessions”

In an unpublished opinion from the 11th Circuit Court of Appeals, a three-judge panel unanimously reversed summary judgment which had been entered in favor of a property management company — Paradise Beach Homes (“PBH”) — in a premises liability suit which alleged PBH failed to warn guests about the danger of diving off the pier into 3 foot deep, Santa Rosa Sound.

Case Background

Knoll, the injured party, was staying with friends in a short term vacation rental home in Pensacola Beach which included a 188 foot private pier. When she arrived shortly after midnight she ran down the length of the pier and dove head first into the water, suffering a severe spinal injury.

The Appeal

On appeal, the issue was whether the property management company knew or should have known of the dangers associated with diving off the property’s pier and therefore had a duty to warn of the shallow depth. The trial court found in favor of the property management company finding that there was no history of anyone diving head first off the pier and that the defendant did not build the pier. On appeal, the injured party argued that the property should have known of the dangers of diving because the homeowner had previously placed a “No Diving” sign on their pier.

Continue Reading No Diving: What You and Your Property Manager Should Know Could Hurt You

Under Florida law, a landlord has a statutory right to demand double rent from a tenant when the tenant refuses or fails to give up possession of leased premises at the end of the lease term. § 83.06(1), Florida Statutes. When a tenant holds over past the expiration of the lease, then the tenancy becomes a tenancy at sufferance and the tenant is considered a holdover tenant. However, a landlord is not automatically entitled to double rent from a holdover tenant until the landlord demands double rent from the tenant, even if the lease provides for it. If landlord does not demand upon tenant, then the tenant is only required to continue paying the original rental rate.

Failure to Vacate

These rules were illustrated in Lincoln Oldsmobile, Inc. v. Branch, 574 So.2d 1111 (Fla. 2d DCA 1990) (“Lincoln”). In Lincoln, the tenant, Bob Lincoln, Inc., failed to vacate property owned by landlord, William Branch and Roger Dean (collectively, “Branch”), after Branch refused to grant Lincoln a short lease extension to allow for construction of Lincoln’s new facility.

Continue Reading How/When Can I Get Double Rent From My Commercial Tenant?

Have you decided to sell your home? Perhaps you are considering to go it alone without the assistance of a realtor to potentially save thousands of dollars in commissions. Here are a few tips to keep in mind:

  1. Price Your Home Competitively. You may utilize online pricing calculators like Zillow’s Zestimate, or websites like Trulia, to assist you with determining what comparable homes sold for in your community. They are only estimates so you may want to obtain a competitive market analysis from a real estate agent, usually free, or hire a local home appraiser.
  2. Prepare Your Home. Make your home look great on both the exterior and interior. De-clutter and brighten up your home, clean it from top to bottom, and ensure it smells good.
  3. Draft Your Listing Ad. Your ad should be thorough, yet concise. Be sure to include important home facts such as the number of bedrooms, bathrooms and any upgrades and/or improvements. The photos of the home should be as appealing as possible. Considering hiring a professional photographer.
  4. Advertisement. Since so many buyers begin their search online, you should consider some popular websites such as Zillow, Trulia, HomeFinder, FSBO and Craigslist.
  5. Host an Open House. Once your home is listed for sale, host an open house. To prepare, visit a few open houses in the community and take notes. Create an information sheet with photos of your home for potential buyers or print copies of your ad from Zillow or the like. Schedule your open house on the weekend in the early afternoon.

Continue Reading 5 Tips for Selling Your Home Without a Real Estate Agent

Section 624.1055, Florida Statutes, is part of the recent Omnibus Insurance Bill, HB 301: Contribution Rights Among Insurance Carriers. This new legislation impacts those involved in Florida construction defection litigation and applies to claims, suits or other actions initiated after January 1, 2020.

Old Rule – No Right of Contribution

The longstanding rule in Florida has been that there is no right of contribution among insurance carriers for attorney fees incurred in defending a mutual insured. The rationale has historically been that each carrier owes a complete and independent obligation to provide a defense under the insuring policy, such that, by issuing the policy, the carrier did so without contemplation that it would be entitled to recover payment from another carrier for such defense costs. The Florida Supreme Court described the rationale for the current rule in the case of Argonaut Ins. Co. v. Maryland Cas. Co., 372 So.2d 960, 964 (Fla. 1979), as follows:

The Legislature has not seen fit to allow contribution for costs or attorney’s fees between insurance companies. If contribution for costs were allowed between insurance companies, there would be multiple claims and law suits. The insurance companies would have no incentive to settle and protect the interest of the insured, since another law suit would be forthcoming to resolve the coverage dispute between the insurance companies. This is contrary to public policy, particularly since the insured has been afforded legal protection and has not had to personally pay any attorney’s fees.”

New Legislation and Impact

Continue Reading New Legislation Impacting Florida Construction Defect Litigation

Do you remember the 80’s? I sure do, Blondie sang Call Me and The Empire Strikes Back came out and we learned that Darth Vader was Luke’s father (still unbelievable nearly 40 years later)! More importantly, the First District Court of Appeal remembers the 80’s and recently referred to a decision it handed down in 1980 when ruling on an inverse condemnation claim.

Who owns an inverse condemnation claim?

In the case from this summer, Robert and Susan Simon owned property in Jacksonville that included a pond into which storm water drained. After owning the property for more than ten years, the Simons decided it was time for the City of Jacksonville to maintain the pond. The Simons filed an inverse condemnation suit against the City, claiming that the City’s drainage of water into the pond amounted to a taking of the pond. The trial court disagreed, saying that if a taking had occurred, it took place years before the Simons acquired the property. (I have talked about inverse condemnation before on this blog.)

Continue Reading 1980 — still crankin’ out the hits…and the case law!

Did you know that liens can be filed on your real property without your knowledge or consent, even if they’re not valid? Did you know those liens can affect title to your property? Did you also know someone can create a fraudulent deed that gives your real property to someone else? It’s all very scary and, unfortunately, happens frequently. That’s why the Lee County Clerk of Courts recently launched a new Property Fraud Alert program.

The Property Fraud Alert program is completely free and allows subscribers to register their name (or any name) into the fraud alert system, and the system will alert registered users within 48 hours if a document has been recorded with the name of a registered user. This system will allow early detection of potentially fraudulent activity, which allows property owners to act fast and avoid issues down the road.

Why is the system so important?

Continue Reading New Property Fraud Alert Service Available to Lee County Property Owners