Claim of LienA business trial lawyer may hear this question or something similar a number of times. The short answer is, “It depends.”

Most of the time, a person or business doesn’t have a right to record a claim of lien in the public records unless the person or business is a contractor, materialman, or supplier. In those circumstances, if the person or business meets other requirements of Florida’s lien law, then it may be appropriate to record a claim of lien.

It’s important to recognize that in most circumstances, however, there is no pre-judgment right to record a lien against real property just because the owner may owe money to a person or business.

A word of caution

Recording a claim of lien, in the absence of a valid basis to do so, can subject a person or business to a claim for attorneys’ fees or damages for slander of title. In the case of a fraudulent lien, the party against whom the lien was recorded has a complete defense to the foreclosure of the fraudulent lien. This can be decisive in a lawsuit against a debtor, as the creditor may have to compromise his or her total amount of damages sought in order to account for the damages or attorneys’ fees incurred in by the debtor defending against a fraudulent lien. The state attorney may even prosecute the filer of a fraudulent lien for a third degree felony.

While a minor mistake in preparing an otherwise valid claim of lien won’t render the lien fraudulent, the law of liens can be complicated. It’s important to consult your lawyer.

Legal options to collect a debt

Continue Reading “Can I put a lien on them?”

Henderson Franklin was proud to sponsor the real estate event Market Trends, which took place on Thursday, September 9, 2021, at the Caloosa Convention Center, downtown Fort Myers. The speakers included Randy Thibaut, CEO of LSI Companies, Denny Grimes, President of Denny Grimes & Team at Keller Williams, and Justin Thibaut, President of LSI. The presentation focused on the real estate market in Southwest Florida in 2021; and, more specifically, on three major areas of the market: new residential construction, the residential resale market, and commercial real estate. The following provides a brief recap of the presentations.

Continuing the trend from the second half of 2020, both the residential and commercial markets in Southwest Florida sustained their momentum. New homebuyers continue to flock to the region and developers are trying to keep up with demand.

New residential construction market

new constructionThe total number of new building permits for single-family and multi-family in Lee, Collier and Charlotte counties has continued to increase. 2020 saw a total of 18,418 residential permits issued. The year-to-date total for residential permits issued in 2021 currently sits at 14,272, with the projected total by year’s end estimated to be 23,400 permits issued. The past 12 months have seen a double-digit percentage increase in new permits in all three counties. Lee County saw an 11% increase, Collier a 22% increase, and Charlotte with an astounding 50% increase.

As was the case in 2020, individual communities continued to see astounding growth. The top three communities were Ave Maria, Babcock Ranch and Isles of Collier Preserve. To showcase that the residential market continues to grow, look no further than Babcock Ranch, which in 2020 saw 533 new building permits issued to various builders. It currently stands at 691 residential permits issued to various builders in 2021.

While the big builders like Lennar, DR Horton, and Pulte continue to dominate the market, we have seen a comeback for the small builders, with over 6,000 permits issued to these builders. An interesting new trend taking place in Southwest Florida is the build-for-rent model. This model appears to be aimed at a younger generation looking for homes, but wanting more financial flexibility. It will be interesting to see how this trend continues over the coming years.

While at some stage the market will likely level off, demand in the residential market looks set to continue in 2021 and the foreseeable future in Southwest Florida. As homebuyers continue to move into the region, developers look to continue buying up land and building single-family and multi-family units.

Residential resale market

Continue Reading Experts address the current state of the Southwest Florida real estate market

Property TaxIt feels like tax season is always upon us, and this time of year is no different. The month of August, and specifically the second week of August, marks the typical time of year when the Property Appraiser’s office sends out TRIM Notices to all property owners in the county. TRIM Notices are sent out for all types of property, including residential and commercial.

What is a TRIM Notice?

A TRIM Notice stands for the “Truth in Millage” notice, and reflects the official notice of proposed property taxes as required by Florida law. The TRIM Notice is not your property tax bill, but is an estimate of your property taxes based on the proposed millage rates for that taxing year, your property values as of January 1 of that taxing year, and any applicable exemptions applied to your property, such as your homestead exemption.

If your TRIM notice isn’t a bill, then why is it important?

Continue Reading August Marks TRIM Notice Season

Lake Okeechobee For many residents of Florida, the local news over the past weeks focused on images of large scale fish die-offs and dark polluted water in the Tampa Bay and St. Petersburg areas. For those here in Southwest Florida, these images coming out of central Florida serve as a reminder of the summer of 2018, when toxic blue-green algae spilled out of Lake Okeechobee, down the Caloosahatchee, and ultimately into the Gulf of Mexico causing similar fish-die offs and red tide events.

Coincidentally, at the same time the events in Tampa were making national news, the Army Corps of Engineers conducted a public meeting which resulted in the adoption of a revised Lake Okeechobee System Operating Manual, or “LOSOM” for short. The plan was last revised over a decade ago and governs the Army Corps’ management of the water levels in Lake Okeechobee.

The most important aspect of this management plan is the freshwater releases down the St. Lucie River, Caloosahatchee River and through the Everglades into Florida Bay. The Army Corps, as the executive arm in charge of these releases, drain and store water to assist with flood control, system ecology, and agricultural irrigation around the Lake. The adoption and modification of the LOSOM plan are governed by the Comprehensive Everglades Restoration Plan, codified as section 601 of the Water Resources Development Act of 2000.

Alternative CC

Considering the Congressional mandate of the Everglades Restoration Plan, along with public input from numerous stakeholders across South Florida, the Army Corps at a July 15th meeting considered a number of revised management plans. The Army Corps ultimately decided on the plan known as Alternative CC, which was largely supported by conservation groups who viewed the plan as a more balanced approach to solving the water quality issues across South Florida.

How does this new plan impact Southwest Florida?

Continue Reading Army Corps of Engineers announce new Lake Okeechobee Management Plan

CondoThe devastating collapse of one of the Champlain Towers South 12-story beachfront residential condominium towers in Surfside, Florida, has prompted officials at the local, state, and federal level to assess what precautions should be taken – or mandated – to prevent similar tragedies. At present, the cause of the collapse is still unknown.

In the wake of the collapse, however, a past engineering report has resurfaced which indicates that the tower had “major structural damage” as of October 2018. The same report concluded that the necessary repair work would be extremely expensive and create a significant disruption for residents. Whether the association acted upon this information reasonably will, unfortunately, be the source of litigation for months and years to come and has caused many condominium associations throughout the state to look in the mirror.

What are associations required to do to avoid a tragedy like Champlain Towers? What should associations do, even if not required by law?

Florida’s Condominium Act addresses engineering reports and warranties to be made by developers of a residential condominium, generally at the time of building or at such time that control of the association transitions to the members. However, there are few, if any, mandates at the state level as to a continued obligation to inspect the structural integrity of buildings. Politicians and residents throughout Florida have called on the state to enact mandatory requirements for building recertification, but Governor Ron DeSantis has not committed to any state action to that effect.

Through the efforts of advocacy groups and industry leaders such as CAI and Florida’s Real Property, Probate, Trust and Litigation Section, which has appointed a Condominium Law & Policy Life Safety Advisory Task Force, it is possible that future legislative sessions will see proposed laws aimed to prevent or minimize the likelihood of similar tragedies. In the absence of such legislation, though, condominium associations are guided primarily by local ordinances (to the extent they exist), and the business judgment of the board of directors.

Continue Reading Condominium associations react to tragedy in Surfside, Florida

land developmentIn 1995, the Florida Legislature took bold steps to protect private property rights by enacting the Bert J. Harris, Jr. Private Property Rights Protection Act, better known as the Bert Harris Act. The Act created a new cause of action for private property owners whose real property is burdened by government action, such as a new ordinance or regulation that limits development of a piece of property. The Act gave private property owners peace of mind when it comes to being able to use and develop their property the way they want to.

During the 2021 legislative session, the Florida Legislature took steps to strengthen the Bert Harris Act in favor of private property owners through HB 421/1101.

Procedurally, the bill passed both the House and Senate chambers, but has not yet been signed by the Governor.

What impact will this bill have on Florida landowners?

Continue Reading New Legislation Designed to Relieve the Burden on Landowners Filing Bert Harris Claims

Hurricane Season AheadEach year, the months of June to November keep property owners across the State of Florida a bit on edge when storms begin brewing out in the Gulf and the Atlantic. This past weekend tropical depression Claudette kicked off the 2021 hurricane season, signaling to property owners across the state that it is time to begin making the necessary preparations in advance of potential storms. In addition to stocking up on batteries, plywood, and water, property owners should be aware of potential legal consequences resulting from a hurricane or tropical storm.

Damage to land

The first and perhaps most readily apparent of these consequences is when a hurricane causes a sudden change to the shoreline otherwise known as avulsion. The United States Supreme Court defined avulsion as:

the sudden or perceptible loss of or addition to the land by the action of the water or a sudden change in the bed of a lake or the course of a stream.”

Hurricanes are considered avulsive events under Florida law, which – unlike other erosion events (such as accretion or reliction which are more gradual) – preserves the property boundary at the mean high water mark existing prior to the storm. In the aftermath of a hurricane which causes a sudden loss of the shoreline, that boundary remains the same, entitling the State to reclaim or back fill that portion of the beach to ensure that the public right of access is not cut off.

Beachfront owners should be cognizant of the location of the mean high water mark or any coastal construction control line. After a storm passes, this will allow beachfront owners to better understand how the storm impacted their property boundary, and whether the State has any rights to backfill a portion of the beach that was lost.

Purchasing property in hurricane season

Continue Reading Preparing for a Storm: Legal Considerations for Property Owners during Hurricane Season

Naples FL CondoCondominiums, cooperatives, and homeowners associations will see many changes to their operations following the new laws borne from Florida’s 2021 legislative session. Among these changes are new laws governing rental restrictions in homeowners associations in Senate Bill 630. The bill, which passed both the House and Senate, is anticipated to be signed into law by Governor DeSantis and will have an effective date of July 1, 2021.

The new law reflects the homeowners association’s corollary to rental restrictions which have been in Chapter 718 (the “Condominium Act”) since 2004. In summary, the new law will implement that following changes affecting how and against whom rental restrictions may be enforced in homeowners associations: Continue Reading New laws prompt HOAs to examine – and quickly change – rental restrictions in advance of July 1, 2021 effective date

Gated CommunityThe 2021 Florida Legislative session, which ended on April 30, 2021, was an active one for proposed community association legislation.

The following community association-related bills have either been signed into law or have passed the House and Senate and are pending signature by Governor DeSantis, with anticipated effective dates provided: Continue Reading 2021 Florida legislative session brings significant changes to community association laws

bitcoin graphI am sure that by now most people have heard the news stories and social media posts about people becoming rich overnight simply by acquiring and often forgetting about Bitcoin and other forms of cryptocurrency in recent years. Those viral stories of individuals getting lucky or unwittingly stumbling into fortunes are entertaining reads, but the reality is that cryptocurrency has become a legitimate investment opportunity attracting the attention of large institutional investors and influential CEOs such as Elon Musk, who are taking advantage of the tremendous growth of Bitcoin and other coins to enhance personal and corporate profits.

If you were one of those lucky individuals who bought into Bitcoin and other cryptocurrencies early or are a savvy investor who realized profits through the highs and lows of the market, you may be wondering how you can turn those gains into tangible assets such as real estate. Similarly, for those involved in real estate transactions, this new technology creates challenges for the parties involved who attempt to navigate a largely unregulated area of the law, while also attempting to apply current regulations to crypto transactions.

Crypto only real estate transactions

buying real estate with bitcoinThere are two primary ways in which crypto-based real estate transactions can be structured. The first is purchasing the property using unconverted cryptocurrency. At the present time, this may not be feasible in most instances since many sellers, closing agents, brokers, and other parties involved in the transaction may be reluctant to accept cryptocurrency that is not converted into U.S. Dollars. Their reluctance is well founded as the price of Bitcoin and other coins, unlike securities, fluctuates constantly, even outside of business hours. This may lead to risk intolerant sellers from accepting cryptocurrency offers and entering into contracts. If the price of a particular coin were to plummet, the buyer may not have sufficient funds to proceed with the sale.

Continue Reading Buying Real Estate with Bitcoin