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

(As published in the “Roundtable” in the July 2020 Issue of Suite Life Magazine)

While residential tenancies have many terms and protections set out in the Florida statutes that cannot be waived, the same cannot be said about commercial tenancies. As a result, the general rule of thumb is that if a condition or situation is not addressed by your commercial lease, the Florida statutes will be of no use.

Thus, commercial property owners and landlords should always strive to use the most comprehensive lease agreement with their tenants. Below are some of the most common “absent provisions” that have come back to bite a commercial landlord.

Tenant Improvements

Your lease should be specific about which party has the authority to approve all plans and hire the contractors. The lease should also contain very specific information about the payment of any tenant improvement allowance (lump sum versus payment in the form of rent abatement) and the timing of such payment.

Casualty Loss

In the event of a casualty (fire, storm, etc.), the lease should state who is entitled to the insurance proceeds. There should be deadlines within which the landlord or tenant are required to make repairs, and there should always be a provision that addresses whether a lease may be terminated in the event of a casualty that renders the property unusable.

Non-Monetary Default


Continue Reading Commercial Leasing: The Devil is in the Details

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

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

Have you decided to sell your home? Perhaps you are considering to go it alone without the assistance of a realtor to potentially save thousands of dollars in commissions. Here are a few tips to keep in mind:

  1. Price Your Home Competitively. You may utilize online pricing calculators like Zillow’s Zestimate, or websites like Trulia, to assist you with determining what comparable homes sold for in your community. They are only estimates so you may want to obtain a competitive market analysis from a real estate agent, usually free, or hire a local home appraiser.
  2. Prepare Your Home. Make your home look great on both the exterior and interior. De-clutter and brighten up your home, clean it from top to bottom, and ensure it smells good.
  3. Draft Your Listing Ad. Your ad should be thorough, yet concise. Be sure to include important home facts such as the number of bedrooms, bathrooms and any upgrades and/or improvements. The photos of the home should be as appealing as possible. Considering hiring a professional photographer.
  4. Advertisement. Since so many buyers begin their search online, you should consider some popular websites such as Zillow, Trulia, HomeFinder, FSBO and Craigslist.
  5. Host an Open House. Once your home is listed for sale, host an open house. To prepare, visit a few open houses in the community and take notes. Create an information sheet with photos of your home for potential buyers or print copies of your ad from Zillow or the like. Schedule your open house on the weekend in the early afternoon.


Continue Reading 5 Tips for Selling Your Home Without a Real Estate Agent

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

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

As a Florida real estate attorney, one topic that I am commonly asked about is homestead. One question frequently asked by clients is:

Is it possible for their spouse to waive his/her homestead rights? If so, how?”

Why Would a Spouse Waive Homestead Rights?

More often than not, one spouse has already provided for the other spouse through their estate planning documents, insurance policies, or payable on death accounts and would like to devise their homestead per their testamentary wishes.

The issue here arises from the fact that the Florida Constitution restricts either spouses’ ability to devise their homestead in their will. For example, if Spouse A wants to leave his homestead to his brother (instead of his spouse), he cannot leave his homestead to his brother in his will if he is survived by his spouse or minor child.

So what then happens when Spouse A has no minor children, and Spouse B wants to waive his/her rights in the homestead?

Florida Senate Bill 512


Continue Reading Can My Spouse Waive His/Her Homestead Rights in Florida?