The Florida legislature’s special session held this week resulted in new laws aimed to promote condominium building safety. Senate Bill 4D passed the House of Representatives and Senate each, and was signed into law by Governor Ron DeSantis on May 26, 2022.

The legislation comes nearly one year after the devastating partial collapse of the Champlain Towers South residential condominium in Surfside, Florida. Following the tragedy, Florida’s legislature grappled with proposed legislative during the regular session in March 2022, but the condominium building safety laws proposed ultimately were not passed at that time. The special session presented a second, and successful, opportunity to revisit these proposals. The new laws represent statewide and industry-wide efforts to prevent similar tragedies in the future by mandating a variety of preventative measures, including:

  • “Milestone inspections” of condominium buildings at least three stories in height must be performed when the structures reaches 30 years since its Certificate of Occupancy and every 10 years thereafter. For similarly situated condominium buildings that are within 3 miles of a coastline, the milestone inspection must be performed when the structure reaches 25 years, and every 10 years thereafter.
  • A “structural integrity reserve study” is now required to be performed at least every 10 years after the condominium’s creation for each building on the condominium property that is three stories or higher. The study must include the roof, load bearing walls, floor, foundation, fireproofing and fire protection systems, plumbing, and any item with a deferred maintenance or replacement cost that exceeds $10,000.00.
  • Furthermore, Members cannot opt-out of the mandatory funding of reserves for structural integrity components, regardless of a membership vote approving same.
  • Requiring inspection reports and studies to be kept as Official Records and available and published to Members.
  • Clear developer requirements for building inspections, structural integrity reserve study, and funding requirements prior to transition to the residents.
  • Engagement of the Florida Department of Business and Professional Regulation and local municipalities to track condominium buildings and the inspection reporting.

While the legislation presents new requirements from the current regulations, it is not the first time that inspections have been required by the Condominium Act. In 2008, House Bill 995 was adopted, requiring inspections for three-story condominium buildings every 5 years, though a majority of voting interest could opt-out of this requirement. That law was later repealed in 2010; at that time, many advocates for repealing the law cited reducing fiscal costs in the wake of the Great Recession.

When does the new law take effect?


Continue Reading New condominium building laws adopted in Florida seek to prevent future Surfside tragedies

Leaving Real Property to Loved OnesOwning real property has always been a staple investment vehicle for people throughout history. One attractive feature of investing in real property is that it may also double as a Homestead. In other cases, real estate investments may be rental, commercial or recreational (i.e. your log cabin or private island).

Whatever the case may be, it is important to understand that real estate can be owned in several ways, each of which has important legal consequences when it comes to leaving it to your loved ones upon death. Failing to understand how you legally own your property and how it will be passed on to your loved ones can lead to unintended, and often unforeseen consequences.

Outright Gifts at Death

  1. Gifts In Your Will. Leaving real property to someone at your death can be accomplished via your Last Will and Testament. Your Estate Planning Attorney can help you create the proper testamentary language to direct that ownership of a certain parcel of property be transferred to your chosen loved one(s). This method is very straightforward and initially, often less expensive than other options. However, making this kind of gift in a Last Will and Testament usually requires the person in charge of your estate when you die (the “Personal Representative”) to submit your Last Will and Testament to the probate court and begin the probate process to transfer the asset pursuant to the terms of your Last Will and Testament. Probate can be expensive, public and time-consuming.
  2. Gifts from a Trust. Many Revocable Living Trusts are designed to serve as a substitute for a Last Will and Testament by directing who among your loved ones should receive certain items of property at your death, including real estate. The Trust, similar to a Will, can also distribute your real property to your loved one(s) pursuant to your wishes. However, the Trustee, instead of your Personal Representative will transfer the property to your designated recipient privately during the Trust Administration. One of the primary benefits of a Trust is that, as long as you transfer your property’s title to the Trust before you die, the Trustee will have the necessary power to make the post death transfer to your intended beneficiaries. Probate will be unnecessary, saving your estate and trust beneficiaries significant costs and delay.
  3. Gifts Using Enhanced Life Estate Deeds. A number of states have passed laws that allow property owners to record with the local land records office, a deed that transfers the title automatically (without the need of a probate court) to a named beneficiary at the death of the original land owner. This method for transferring real estate outright to the person whom you intend to receive it at your death can be very simple and cost-effective. Not every state allows this type of transfer, so it is important to check your state laws or consult with an attorney knowledgeable in this area before attempting to use such a tool. Florida has a unique type of deed, named the “Enhanced Life Estate Deed” (a/k/a “Lady Bird Deed”), which allows for this type of title transfer.

Gifting Real Estate to Multiple Individuals


Continue Reading 7 Ways to Leave Real Property to Love Ones

grandparents homeThe short answer to this question is no. Naming your child as the recipient of your home in your will does not give them any right to your home while you are still living. However, understanding why requires a little more explanation.

Title Is Key

When it comes to real property such as a house, the person who has title to (or legal ownership of) the property controls the property. The title holder (owner) can lease, mortgage, refinance, sell, gift, or do anything else with the property. When you purchased your home, you received title to it through a deed. This deed proves you are the owner and you have all rights to your property.

A Will Is Effective Only upon Your Death


Continue Reading If I Give My Home to My Child in My Will, Can They Take My Home While I Am Still Alive?

Henderson Franklin was again honored to sponsor 2022 Market Trends, which took place on March 16, 2022, with speakers Randy Thibaut, founder of Land Solutions, Inc.Denny Grimes, President of Denny Grimes & Team at Keller Williams Realty, and Justin Thibaut, CEO of Land Solutions, Inc.

The presentation discussed the current conditions of the real estate market in Southwest Florida and provided a future forecast about what the market may look like in the coming year. The presentation also focused on the primary areas of the real estate sector: residential development, resale properties, and the commercial market.

Overall, the end of 2021 was a continuation of the rapid growth that comprised 2020 and 2021, as waves of new residents and businesses entered into the market. All sectors of the market are currently seeing growth, but nowhere is this more evident than with residential development and resale, as low inventory coupled with high demand has prompted price fairly dramatic price increases across the three counties of Lee, Collier and Charlotte. The ultimate question, however, will be whether this will continue or will the market begin to decline as prices continue to creep up higher.

Residential Development

real estateIn 2021, Southwest Florida saw a 47% increase in new single-family residential permits issued amongst the three counties, with Lee County seeing the highest increase of 59%. Total residential permits increased 39% percent to approximately 25,000 permits. These percentage increases, while dramatic, still pale in comparison to the number of permits issued in 2005, which numbered around 44,000 permits prior to the crash in 2008. Similarly, multi-family residential permits increased by 19% over the last year.

These numbers illustrate that low resale inventory is driving up the prices, leading buyers to seek new construction and rental properties. Presently, the current inventory of resale properties cannot match the demand of new homebuyers entering the market, leading to homes rising in value by as much as 77% in some areas over the last year.

Continue Reading The Pulse of Southwest Florida Real Estate: A Recap of 2022 Market Trends

When using trusts in estate planning, a key element includes transferring the trustmaker’s real estate into the trust by recording a deed with the local recording authority. This step is crucial for ensuring that the trustee has the authority to manage and ultimately sell or transfer the property should the trustmaker become incapacitated or die.

If the trustmaker were to die without retitling the property in the trust’s name, the property may have to pass through the probate process even if the trustmaker had a will. Probate is a state court process that often involves significant expenditures of time and money and causes complications that many people would rather avoid.

However, an important question arises regarding the type of deed that should be used for transferring real property into the trust’s name. There are several types of deeds that can be used, one of which is a general warranty deed. The other types of deeds commonly used in the United States for transferring property are quitclaim deeds and special warranty deeds.

Although a full discussion of the differences among the types of deeds is not possible in an article of this length, the following information briefly explains each type of deed and why someone might want to use it when transferring ownership of real property.

Quitclaim Deeds

When someone (grantor) wants to transfer whatever property rights they have in a parcel of property, they can use a quitclaim deed. When an individual drafts and signs a quitclaim deed, they are, in effect, making a statement that whatever they own regarding the property described in the deed is now transferred to the grantee.

real estateWhat makes quitclaim deeds unique, however, is that the grantor who creates and signs the quitclaim deed is also putting the grantee on notice that they make no promises whatsoever that they actually own the property. If they do own the property, it is effectively transferred using the quitclaim deed after it has been recorded with the local recording authority. But if it turns out that the grantor did not, in fact, own the property, the grantee cannot bring a claim against the grantor unless they can prove that the grantor knowingly intended to defraud the grantee. However, if the grantor thought they owned the property but in fact did not own it because of some problem with the title, the grantee would have no ability to make the grantor legally liable for the error.

However, it is still common for individuals to use quitclaim deeds when transferring real property into a family trust for estate planning purposes. They (or their attorneys) reason that a quitclaim deed transfers any ownership interest that you may have in the property to your trust so that your trust can hold and manage it if you become incapacitated or die. Then, when the time comes to sell the property, the purchaser will, presumably, buy title insurance to cover any past defects in the title when they take the property.

General Warranty Deeds


Continue Reading Using Real Estate Deeds in Estate Planning

Florida Gulf Coast University recently released the January 2022 edition of the Southwest Florida Regional Economic Indicators. The report shares economic data for the region, including an update on the real estate market status across the coastal counties of Lee, Charlotte and Collier. Overall, the report indicates that the real estate market is leveling off after fairly dramatic swings brought about by the COVID-19 pandemic.

Building Permits

Single-family building permits, the metric which indicates the number of new homes under construction, saw an increase of 40% from November 2020 to November 2021. Yet, while this growth indicates increases in new construction from earlier stages of the pandemic, a comparison of more recent numbers actually shows a slow decline over the latter half of 2021.

For example, at the peak of the pandemic housing boom in May 2021, approximately 1,100 new single-family permits were issued by Lee County. However, that number dropped over 18% to roughly 900 permits the County issued by November 2021. These numbers seem to indicate that in the early stage of the pandemic, new construction fell off, likely due to concerns over the economy, material and supply shortages, labor shortages, and a variety of other pandemic-related factors.

In 2021, Florida attracted thousands of new residents seeking to enjoy warmer weather and less stringent COVID restrictions. However, it appears now the population influx into the state may be beginning to slow, which in turn is resulting in a leveling off in new construction. Whether this pattern continues now that more seasonal residents are returning to the area remains to be seen.

Existing Single Family Home Sales & Active Listings


Continue Reading State of the SWFL Real Estate Market

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