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

Permit Extensions for Emergency Declarations

Pursuant to Florida Statute 252.363, the Governor’s declaration of a state of emergency tolls the period remaining to exercise rights under a permit or other authorization, essentially extending the life of the permit or authorization.

The expiration date of the permit or authorization is tolled for the duration of the emergency declaration plus an additional six months, and applies to the following:

  • development orders issued by a local government;
  • building permits;
  • permits issued by the Department of Environmental Protection or a water management district; and
  • the buildout date of a development of regional impact.

On March 9, 2020, Governor DeSantis issued Executive Order 20-52 declaring COVID-19 a public health emergency. Such declaration triggers the provisions of Florida Statute 252.363 and allows extensions of the permits and authorizations mentioned above.

Requests for extensions must be submitted to the appropriate permitting authority within 90 days after the emergency declaration has expired. Executive Order 20-52 is set to expire on May 8, 2020, unless further extended.

Suspension of Mortgage Foreclosures and Evictions

Continue Reading COVID-19: Real Estate Updates Halfway Through the Stay-at-Home Order

It’s no secret that the COVID-19 epidemic is affecting virtually every sector in some way, shape, or form. The real estate sector is no exception. Although the modern real estate world has slowly moved away from face-to-face deals, there are still aspects of real estate that require some type of face-to-face contact.

How do we keep moving forward while remaining safe and healthy?

With most banks, law firms, and offices closing up to the general public, you may be wondering how to fulfill the time constraints of your contract and how a deal can be closed. In our downtown Fort Myers office, we have set-up a drive-thru conference room for signings.

Discuss the best options and next steps with your real estate attorney. Depending on the contents of your contract and individual situation, a contract extension may be the best option. However, it may also be feasible to continue to closing using the proper resources.

Force majeure clauses

Continue Reading COVID-19 Impact on Real Estate Contracts and Closings

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

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?

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

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

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