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

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

Florida boasts the longest coastline in the contiguous United States, and “waterfront” property, for many, is one of the most desirous features of real estate in Florida. Ownership of waterfront property that abuts navigable bodies of water (i.e., waters which, by reason of their size, depth, and other conditions are navigable for useful public purposes) also carries with it certain riparian or littoral rights, including the right to construct a dock, pier or wharf. (In this article, I will use the term “riparian” broadly, to include both riparian and littoral rights, as consistent with customary usage in Florida courts.)

What happens when a property owner’s waterfront rights interfere those of an adjoining property owner?

In the case of 5F, LLC v. Hawthorne, 2D19-2574, the Florida Second District Court of Appeals answered this question in a decision issued on February 26, 2021. As of the writing of this article, there is a pending motion for rehearing, so the ultimate disposition of the case is not yet final.


Continue Reading Florida Appeals Court Rules in Favor of Waterfront Property Owner, Despite Neighbor’s Objection and Demand for Payment

Henderson Franklin was honored to sponsor 2021 Market Trends, which took place on March 9, 2021, with speakers Randy Thibaut, founder of Land Solutions, Inc., Denny Grimes, President of Denny Grimes & Team at Keller Williams Realty, and Stan Stouder, founding partner of CRE Consultants, LLC. The presentation discussed the real estate market over the last year in Southwest Florida. The following provides a summary of the event and what the speakers forecast the market to look like in the coming year. The report focused on three areas of the market: new construction, the resale sector, and commercial real estate.

Overall, 2020 saw sluggish growth in the first part of the year, as the initial stages of the COVID-19 pandemic injected fear into the market. The second half of the year saw tremendous rebounds in the residential sector. These rebounds were largely due to increasingly stringent and long-lasting shutdowns in Northern states, which brought thousands of new homebuyers to Southwest Florida.

New Construction Residential Market

In terms of the new construction market, 2020 saw an initial dip in the early part of the year, but, overall, the total number of new building permits amongst Lee, Collier and Charlotte counties increased an average of 16% across the board. Charlotte County saw the most growth with a 28% increase in new building permits.

Individual communities are also seeing tremendous growth. Leading the way in Southwest Florida was Babcock Ranch with 533 new building permits issued to various builders in 2020. However, prices for new construction, along with rent prices, rose throughout 2020, indicating that supply cannot match demand.


Continue Reading The State of Southwest Florida Real Estate – A Recap of 2021 Market Trends

It is hardly a secret that one of the many draws of Southwest Florida is the accessibility of owning property along the beaches, rivers, and canals that make the area paradise for residents and visitors alike. Waterfront ownership, or littoral ownership, comes with a unique set of rights, such as the right to access and construct improvements on the water. These rights however are not absolute, as various other stakeholders and environmental interests possess similar rights.

What Regulations Apply to Construction of Waterfront Structures?

In terms of constructing improvements such as docks, boatlifts, piers and other artificial structures, the State and County governments have developed legal regimes designed to balance these competing interests and effectively manage the aquatic resources of the State. These statutes and regulations are often difficult to navigate for homeowners and developers unfamiliar with the specific characteristics of waterfront ownership. Careful attention to these statutes and regulations must be paid in order to avoid fines, construction delays, or even being required to remove non-conforming structures.

What Laws Apply to My Property?


Continue Reading Construction of Docks, Piers, and Other Waterfront Structures in Southwest Florida

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

Guest post by Gregory Herman-Giddens, 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?

The COVID-19 pandemic has caused unprecedented impacts on the residential real estate market. The warning signs for Phase I were not easily detected, and almost overnight, the parties to such transactions, as well as those essential to closing such transactions, had to re-evaluate their means and methods of conducting business. Below are some tips for those buying or selling real estate in a pandemic:

Tips for Buyers

  • Add a specific contract amendment addressing potential coronavirus-related delays. Many state realtor associations have provided a coronavirus addendum for use by agents. For example, the Florida Association of Realtors has set forth a Coronavirus (COVID-19) Extension Addendum to Contract to address coronavirus-related delays. This particular Addendum may be utilized with all existing Florida Association of Realtors contracts, inclusive of the various FAR/BAR contracts.
  • In Collier County, Florida, the Naples Area Board of Realtors (“NABOR”), have both a coronavirus addendum and amendment for use with its NABOR existing form contracts. Both the State and local coronavirus addenda provide for time period extensions for the closing date, financing period, inspection period, title cure period, and due diligence periods, as well as allowing the Buyer to receive an escrow deposit refund under select circumstances of lender loan disapproval.
  • Notwithstanding the benefit of these new addenda, buyers should seek legal counsel to review and/or customize a coronavirus addendum or amendment to maximize the buyer’s protection.

Tips for Sellers


Continue Reading Tips for Buying and Selling Residential Real Estate in a Pandemic

On April 2, 2020, Governor DeSantis signed Executive Order 20-94, which placed a moratorium on mortgage foreclosure actions, as well as residential eviction actions related to the non-payment of rent. The purpose of the moratorium was to provide targeted, temporary relief to Floridians in the wake of the COVID-19 pandemic. Since Executive Order 20-94 was enacted, three additional orders were signed by Governor DeSantis in order to extend the stay.

Most recently, on July 29, 2020, Governor DeSantis signed Executive Order 20-180, which extended the foreclosure and eviction moratorium through September 1, 2020. However, the new order made substantial changes to limit the types of cases that are covered by the moratorium.

Changes to the stay on mortgage foreclosures

Previously, all mortgage foreclosure cases were suspended, regardless of the reason the foreclosure action was filed. In contrast, under the new order, the foreclosure stay only extends to “single-family mortgagors adversely affected by the COVID-19 emergency”, and only for cases where the default is directly tied to non-payment.


Continue Reading Important Update Regarding Florida’s Moratorium on Evictions and Foreclosures