Henderson, Franklin, Starnes & Holt, P.A.

Real Estate Contracts Are you aware that the standard Florida Association of Realtors/Florida Bar Contract, often referred to as the “FAR/BAR Contract” has changed? Below is an overview of the revisions to the FAR/BAR Contract for Sale and Purchase, “AS IS” and other residential forms which were discussed earlier this year and have now become effective as of November 1, 2021.

Major Updates to the Standard Form

Section 8(b) – Loan Approval Period

Two tasks are to be completed during this period now. The first is that the buyer must obtain approval for financing as described in the section. This is consistent with the prior version of the contract. However, the new requirement is that the buyer’s lender must receive a satisfactory appraisal before the approval period expires.

Continue Reading Overview of Changes to “FAR/BAR” Contracts Effective November 1, 2021

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

The mortgage business is booming in many parts of the country. Historically low interest rates have created an almost frenzied environment with homeowners scrambling to refinance their home loans at these low interest rates. Even a few tenths of a percentage point of interest, over thirty years, can make a massive difference in the amount of interest that is ultimately paid on a loan.

For many, it makes perfect sense to take advantage of these interest rates. Besides the associated transaction fees of refinancing, there is frequently little to no downside to refinancing in times like these. However, one often overlooked consideration is the impact that refinancing your home could have on your estate plan.

When You Own Your Property In Your Name

Whether you own your real estate solely in your name or jointly with a spouse or other family member, refinancing your property has little impact on determining who will receive your interest in the property upon your death.

Continue Reading How Refinancing a Property Can Affect Your Estate Plan

Department Chair: Eric Gurgold, Esq.

When it comes to your estate planning, how should you handle your timeshare? If you have a revocable trust, should you transfer ownership of the timeshare to your trust? Should you instead continue to hold it in your name, or jointly with another family member? What if you do not use it very often and, despite your efforts to get your adult children to use it, it mostly just goes unused? Here are a few things to consider.

The Case for Owning Your Timeshare in Your Trust

Suppose you find significant value in timeshare ownership. You may want to consider retitling the timeshare in the name of your living trust. In Florida and most states, and depending on the contract, a timeshare interest is considered real property. This is important to know because in most states if you die owning real property in your sole name, it will be subject to an often timely and perhaps expensive probate proceeding for it to pass to your heirs. In Florida, probate and attorneys’ fees for a proceeding to transfer a time share can exceed $5,000. Owning your timeshare in your revocable trust is one of the best ways to ensure that your named trust beneficiaries can take ownership of your timeshare after you are gone without going through probate.

When you first purchase a timeshare, make sure you understand the requirements to transfer it at your death. If the seller cannot with certainty tell you how you can transfer the timeshare (and show you language in the contract supporting their answer), you should seek the counsel of an experienced timeshare or real estate attorney before signing the contract. This distinction can make a difference of thousands of dollars of probate costs and frustration upon your death or disability. You will also want to check your contract or with the timeshare management company to determine whether there will be a fee assessed for the transfer of your timeshare from your name to the name of your trust.

Ultimately, the decision to title your timeshare into the name of your trust is a very fact-specific decision. Asking questions and reading your timeshare contract carefully can help you avoid costly mistakes.

Reasons Not to Title Your Timeshare in the Name of Your Trust


Continue Reading Should You Own Your Timeshare in Your Trust?

As of July 1, 2020, Florida law no longer requires leases for a term of more than a year, residential or commercial, to be signed in the presence of two witnesses. In fact, witnesses are no longer required on any real property leases. See,  http://laws.flrules.org/2020/102

While the legislative bill that led to the new law

Guest post by Nick J. Oliveri, Summer Law Clerk

In late June, Governor DeSantis approved Florida’s version of the Uniform Commercial Real Estate Receivership Act (“UCRERA”) and the Act became effective July 1, 2020. This law begins its life in a time of great uncertainty for the Florida business community as the Sunshine State’s recently-relaxed business restrictions underwent a near full reversal as COVID-19 cases spiked around the state. This retightening of COVID-19 business restrictions and the uncertainty associated with it will likely mean Florida businesses may continue to struggle. This is where UCRERA comes in.

UCRERA codifies Florida common law around receivership and even expanded it in some cases. Those involved in Florida’s commercial real estate industry, whether on the lending or the borrowing side, would do well to take note of these changes as an increase in foreclosures is predicted as a result of COVID-19’s negative impact on Florida’s businesses.

What do Florida lenders need to look out for?

If you are a commercial lender, this law is definitely in your favor due to the expansive powers it gives receivers to help pay back the commercial lenders who appoint them. Lenders should focus on three things:

  • the mandatory receivership duties under UCRERA;
  • what actions receivers are allowed to do “in the ordinary course of business” and outside of it; and,
  • what actions they need court approval for.

The latter two things often go hand in hand as you will see below.

Impact on Borrowers

Although this sounds bad for borrowers, borrowers should be on the lookout for language like “with court approval” because that means a borrower will likely have the chance to contest whatever the receiver is trying to do.

Continue Reading Understanding Florida’s Commercial Property Receivership Act and its Impact on Lenders and Borrowers Amidst COVID-19

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?

As a real estate attorney, one request I often receive from clients is to prepare a deed to transfer their real estate into either a trust (such a revocable trust for estate planning purposes) or an LLC (for liability purposes). At first glance, this may appear to be a simple request with no adverse effects or consequences. However, depending on when the property was acquired, transferring your property may have adverse effects on your owner’s title policy that you received when you purchased the property.

Florida Title Insurance Policy Forms

The Florida Office of Insurance Regulation (“Florida OIR”) governs the title insurance industry in several ways, including the rates charged and the title insurance policy forms issued by attorneys and title agents to purchasers of real estate.

Continue Reading Potential Title Insurance Pitfalls When Transferring Property into a Trust or LLC

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

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?