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

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The Situation

A potential client just bought a vacant lot and plans to build a house on it someday. While discussing the purchase, he mentioned that he thought it was great that he could pay so little for title insurance, yet still insure the full value of his future home against a title defect.

While trying not to deflate his bubble too much, we explained that the title insurance he purchased very likely would not cover the house, or any other improvements he might make to the property. The title insurance policy only insures him (the policy holder) up to the amount stated on the face of the policy.

The amount on the face of the policy is almost always limited to the market value of the property at the time of purchase. This means that his title policy covers the value of the vacant land at the time of purchase, but any additional value created by appreciation, construction of improvements, or by any other means would not be covered.

The Solution

Continue Reading Title Insurance Tip #1: One-Size Coverage Does Not Fit All

“How do you get them to read?” Sterling Jenkins, CEO and Co-Founder at Gladly, who has both lived in and managed community associations, recently posed this question to the Community Associations Institute group on LinkedIn. Mr. Jenkins acknowledged the importance of community association’s governing documents, but that so few people who live in associations actually read them.

Creative Suggestions

Continue Reading Encouraging Community Association Members to Be Familiar with the Governing Documents May Reduce Violations

Increasingly, paper is becoming a thing of the past, and although the law is notoriously slow to follow trends, it has been rather quick to latch onto the digital wave.

It is as if some black-robed man with a curly white wig slammed down the gavel and proclaimed, “All men witnesseth that heretofore law shall no longer move like a snail, but rather shall transpire at the speed of light!”

In 2000, Congress actually made such a proclamation; it passed a law making electronic documents and electronic signatures valid in almost every legal fact, except wills, certain trusts, and some relatively esoteric commercial transactions.Continue Reading Florida Real Estate Law Meets The Digital Age: Are Electronic Documents Valid?

Many home sellers mistakenly consider an “AS IS” sales contract as a release from liability for all faulty or defective conditions on the sale of a home. However, under the landmark case of Johnson v Davis, 480 So. 2d 625 (Fla. 1985) the Florida Supreme Court took a different view.

Florida Supreme Court’s View on “AS IS”

In Johnson, the Florida Supreme Court effectively changed the law in Florida holding that where a seller of a home knows of facts materially affecting the value of the home which are not readily observable and are not known to the buyer, the seller is under a duty to disclose those facts to the buyer.

The effect of Johnson does not make a seller of a home a warrantor of the good condition of the home. Slitor v Elia, 544 So. 2d 255 (Fla. 2d DCA 1989). However, recognizing that in the sale of a home, full disclosure of material facts must be made wherever elementary fair conduct demands it, caveat emptor (or let the buyer beware) is not the rule in Florida residential transactions. Therefore, in the sale of a home, if a seller knows something that materially affects the value of the home which is not readily observable, it must be disclosed. Otherwise, the seller may be subject to various fraud claims or breach of contract claims by the buyer.

But my contract expressly states “AS IS”Continue Reading When Is “AS IS” Not Really “AS IS”?

In addition to providing legal services, Henderson Franklin attorneys are involved in numerous community organizations throughout Southwest Florida. Over the next few weeks, we will be letting our blog readers get to know the members of our Condominium and Homeowners’ Association group a little better by sharing some of the exciting organizations and events we have been involved in.

Today, meet Shannon Puopolo. Not only does Shannon handle association and real estate litigation matters, including collections and foreclosures, and other commercial litigation matters, she serves on boards of several local organizations, including the Guardian Ad Litem Foundation. Shannon gives the highlights of the Foundation’s signature event of the year for us in her latest blog:

Many Americans enjoy the annual tradition of watching the Kentucky Derby. Some even partake in dressing the part, by putting on their finest hats, bowties, and pastel-colored clothing. In Southwest Florida, the community combines this time-honored tradition with a charitable cause – namely, raising money for at-risk youth in our legal system.

On Saturday, May 7th, the Guardian ad Litem Foundation (“GALF”) held its annual Viva La Derby Party, which raises money to support, recruit, and train volunteers who advocate for abused, neglected and abandoned children in the child welfare and court system.Continue Reading Meet Henderson Franklin’s Condo and HOA Team Members: Shannon Puopolo

As we quickly approach the summer, many homeowners, including board members, will be returning to homes up north for the summer. Boards and association managers should take a few minutes to brush up on the requirements for meetings of executive committees that may be appointed to act on behalf of the Board in the absence of some or all of the directors.

Formation of Executive Committees

Boards have the authority under The Florida Not For Profit Corporation Act, unless otherwise prohibited by the Articles of Incorporation or the Bylaws governing the corporation, to adopt a resolution designating from among its members an executive committee to exercise the authority of the board. With the large number of seasonal owners in many communities throughout Southwest Florida, it is not uncommon for the boards of such communities to appoint an executive committee to assist in the operation and care of the association property during the summer season.Continue Reading Community Association Executive Committees: Reminders for Successful Summer Meetings

Statutory Authority for State of Emergency Extensions in Florida

As explained in our earlier blog posts, Section 252.363, Florida Statutes, provides that certain qualifying permits and authorizations can obtain extensions following a declared State of Emergency for the amount of time the declaration was in effect, plus an additional six months.

In order to obtain an extension under the statute, the applicant must submit a written request to the authorizing agency within 90 days after the State of Emergency has expired.

The State of Emergency for Heavy Rainfall Has Expired Continue Reading Once Again, Now is the Time to Extend your Permits in Lee County

Criminals do not qualify as a protected class under the Federal Fair Housing Act (FHA). However, the Department of Housing and Urban Development (HUD), the federal agency responsible for administering the FHA, recently issued a statement affording criminals certain protections when they apply to purchase or rent a residence.

Because of these protections, sellers and housing providers subject to the FHA, such as condominium and homeowners’ associations, should be careful to ensure their well-intentioned policy of checking applicants’ criminal history records doesn’t result in an FHA violation.

HUD issued the recent statement after analyzing national, state, and local statistics on arrest, conviction, and incarceration rates in the United States. The analysis results demonstrated that African Americans and Hispanics are arrested, incarcerated, and convicted at rates disproportionate to their share of the American population.

Given these disproportionate rates, HUD found that criminal records assessments were having a disproportionately negative impact on African Americans and Hispanics.

Tips On Using Criminal ConvictionsContinue Reading Association Criminal Background Checks Could Lead to Discrimination Claims Under FHA

Thanks to the Florida Legislature, community associations can now make use of technology to increase convenience and decrease costs and time required to conduct member votes. The homeowners’, condominium, and cooperative acts were all amended, effective July 1, 2015, to allow associations to conduct owner votes, including elections, using an internet-based online voting system if certain criteria are met. The Division of Florida Condominiums, Timeshares and Mobile Homes adopted rules to provide further guidance for electronic voting for condominiums and cooperatives, which were effective on March 20, 2016.

Where to BeginContinue Reading Electronic Voting in Community Association Elections Offers Convenience and Promotes Member Participation

On April 21, 2016, Southwest Florida’s state legislators presented a “Legislative Wrap-Up” at the Cohen Center of Florida Gulf Coast University. This year’s event was well attended and presented for the first time as a collaborative effort between and among ULI of Southwest Florida, REIS, and the FPZA.

This Year’s Legislative Panel

Attendees had the pleasure of hearing about many of this year’s successful and unsuccessful bills from the following legislative panel:

Highlights from the 2016 Legislative Session

Following a brief introduction by moderator Jenna Buzzacco-Foerster, each panelist was given several minutes to discuss their greatest accomplishments of the 2016 Legislative Session.Continue Reading 2016 Florida Legislative Wrap-Up Presented by ULI SW Florida, REIS and FPZA