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

wire fraudBuying a new home is meant to be an exciting time. In the past several years, especially with today’s sizzling housing market, real estate transactions have increasingly involved sending funds via wire transfer. In typical real estate transactions, buyers and mortgage lenders wire purchase funds to an escrow agent.

The very nature of real estate transactions — large amounts of money transferring between parties — makes them a prime target for criminals. Unfortunately, criminals are increasingly targeting the real estate industry with compromised emails containing fraudulent wire instructions turning any initial excitement into gloom.

A hacker’s playbook

Once hackers gain access to an email account of a real estate agent, a title company, or a consumer, they will monitor messages to find someone in the process of buying a home. If they can hack into a party’s email, they can monitor the communications and swoop in with their own “spoofed” email. The spoofed email address is often indistinguishable from the correct version, and the hacker and will duplicate email signatures, fonts, and other formatting specifications making it appear to look authentic. The hacker will then send fraudulent wire transfer instructions to unsuspecting buyers to steal closing costs or down payments.

Increased litigation


Continue Reading Buyer beware – wire fraud is on the rise!

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

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