Those involved in construction are likely familiar with a Notice of Commencement (NOC). For those who aren’t familiar, a NOC is a document typically required by Florida’s Construction Lien Law to be recorded in the County land records prior to constructing improvements.

When Not to File a Notice of Commencement

This is typically an innocuous administrative procedure which occurs along with permitting. However, not all construction requires a NOC, and problems can arise when one is erroneously recorded. As such, developers should educate their employees not to automatically record a NOC as a matter of course, or just because a contractor or someone at the permitting office tells them to.

Continue Reading Notices of Commencement for Infrastructure Improvements: Think Twice Before Filing

There are ways to do this, and I shared a few with the good folks in the Florida Association of County Engineers and Road Superintendents at their Annual Meeting in Orlando. They call themselves “FACERS, ” by the way, which is a rare case of an acronym that you can easily pronounce!

First things first, though: during my remarks, the crowd and I disposed of several myths: Continue Reading How to $ave Money as a Condemning Authority

With co-author Daumantas Venckus, Law Clerk

Sellers of condominium units often rely on their realtor to make sure the proper disclosures are made in the contract. The Florida Bar and Florida Realtors have adopted a form Condominium Rider which provides not only the disclosures required by the Florida Condominium Act, but also additional disclosures designed to cover some of the issues that aren’t immediately apparent or available to the buyer with respect to the condominium association.

While the information is helpful to the buyer, sellers need to be aware of what the disclosures mean and what their obligations are in order to avoid losing the buyer, or facing a potential misrepresentation claim.

Condominium Association Approval

The association may have the right to approve the buyer. If such right exists in the Condominium Declaration, the approval must be done so within a specified amount of days prior to closing. Both, the buyer and seller must make a diligent effort to obtain such approval. If such approval is not granted within the specified time frame, the contract shall terminate and the buyer will be refunded the deposit.

Right of First Refusal

Continue Reading Selling Your Condo? 7 Things to Know About the Condominium Rider to a Residential Contract

It’s that special time of year where it’s time to break out the sun block and the Yeti coolers. But what does this mean for a Condominium or Homeowners’ Association attorney? Fielding question after question from residents who want to solve all of their Association’s issues before making the trek up north. A lot of the questions we receive from owners are very similar:

  • “Can my Association amend our Declaration this way?”
  • “Can the owners call a member meeting without the Board of Directors?”
  • “Was this meeting properly noticed?”

Nine times out of ten, my answer is always the same: “it depends on the documents.”

Governing Rules

Continue Reading The “ABC’s” of Association Governing Documents

Buck Owens, country music legend, famous for, among other things, plucking a red, white and blue guitar on the variety show Hee Haw, wrote and performed the song “Who’s Gonna Mow Your Grass?” which hit No. 1 on the country charts in 1969. My wife and I liked Buck Owens so much that we picked his hit “I’ve Got a Tiger by the Tail” for our walk up song to be played after exchanging our wedding vows. Later, we named our cat after Buck Owens.

Anyway, the song “Who’s Gonna Mow Your Grass?” is about love lost, a common theme in popular music. This blog post is about land lost, a common theme in inverse condemnation cases.

Can the State Take Your Land Simply By Mowing the Grass?

Continue Reading “Who’s Gonna Mow Your Grass?”

More often than not, a commercial landlord will ask for a personal guaranty from a prospective tenant when negotiating a lease. A personal guaranty gives the landlord the ability to seek from the guarantor any unpaid rent in addition to the business entity that is renting the space. Many times, the guarantor is the owner of the commercial entity seeking to lease the commercial space and is providing a personal guaranty in his/her individual capacity.

Extensions and Renewals

Continue Reading When Should I Ask for a Personal Guaranty for a Commercial Lease?

Over the past few years, we’ve seen an increase in legislation relating to community associations. That trend continues this year, with approximately eleven bills affecting community associations having been introduced when the 2019 legislative regular session convened on March 5th.

The following is a summary of the bills affecting homeowner and condominium associations that have been introduced and are currently working their way through committees:

SB 610 /HB 1259

Continue Reading Legislative Roundup: What changes might be in store for community associations in 2019?

Almost all residential real estate contracts in Florida provide that either the buyer or seller (or, in some cases, both) is entitled to seek the remedy of specific performance.

What is specific performance?

Specific performance is an equitable remedy that forces the other party to perform under a contract, provided that party seeking performance (i.e., the plaintiff) is ready, willing and able to comply.

In most instances, the remedy of specific performance is brought by a buyer, who asks the court to order the seller to convey the property in exchange for the purchase price stated in a contract. The court’s judgment can serve as a valid transfer of the property, much like a deed.

Historically, and especially during the crazy real estate boom of the early 2000s, specific performance claims against buyers were rarely pursued. In fact, many sellers were happy to have a buyer back out, since it usually meant that the seller could sign a new contract with a new buyer at a higher price.

Impact of a declining real estate market on specific performance claims

Continue Reading Residential Real Estate Contracts: The Hidden Surprise of Specific Performance

Guest post by Henderson Franklin’s Construction Chair, J. Matthew Belcastro, Esq.

HB911 is proposed legislation that would substantially revamp Ch. 558, Florida Statutes, by substantially doing away with pre-suit notice requirements and replace those requirements with mandatory non-binding arbitration to take place within 180 days of the lawsuit being filed.

Notably, the new provisions would apply not only to completed projects (like the current version) but also to ongoing projects.

Impact of HB911 on Florida Construction Defect Insurance Claims

Continue Reading Proposed Legislation Would Require Mandatory Non-Binding Arbitration in Florida Construction Defect Lawsuits

Given its status as a tourist destination, and the proliferation of online rental platforms, it would seem that Collier County is the perfect place for Airbnb and similar services to thrive. While these platforms continue to grow, both the City of Naples and Collier County have taken the position that daily, weekly, and/or monthly rentals of single-family homes (also known as vacation rentals, short-term rentals, transient rentals, and/or transient occupancy) are generally prohibited.

Home rentals have been popular in Florida for decades. Prior to the age of Airbnb (which launched in 2008), short-term rentals were allowed to exist “off the radar” with little to no zoning-based enforcement. Successive single-family rentals were not particularly problematic in single-family zoning districts before the internet. As technology continues to evolve, renters, neighbors, elected officials, and code enforcement have easy access to vacation rental information.

In 2011, amendments to state law preempted local governments from adopting ordinances relating to the “use” and “occupancy” of short-term rentals. In 2014, this preemption was removed and replaced with a preemption on local regulation of “duration” and “frequency” of short-term rentals. The remainder of this post will explain the current status of regulation of short-term rentals of single-family homes in the City of Naples and in unincorporated Collier County.

City of Naples Short Term Rentals

Continue Reading Are Short-Term Rentals Allowed in Collier County?