hacker-1944688_1280January is the month of the fresh start. It brings in the New Year and the inevitable “I am going to be better about (insert your commitments here) this year” commitments everyone makes to themselves.

Building on our end of year recommendations, I’d like to offer another “I am going to be better about” to your list.

In 2016, the real estate industry saw a big spike in the amount of attempts fraudsters made to hijack real estate transactions. While we have undertaken significant precautionary measures to make sure our clients and transactions are protected from these attempts, we would like to offer some advice to you to help you avoid any fraudsters’ attempts to detract from your ability to fulfill your New Year’s commitments.

To help protect your real property and your identity, go to your county clerk’s website and perform a public records search for your own name. If you see a transaction or document you don’t recognize, this could be an attempt by someone to steal your identity or assets.

If you find yourself in the unfortunate situation where someone has made a fraudulent attempt on your identity or assets, please give us a call, and we will help you sort it out. Hopefully, you don’t find yourself in those shoes, and instead, you find plenty of time and energy to follow through with your personal “I’m going to be better about.” Good luck!

imac-965325_1280As 2016 closes, we reached out to our team and asked them to share some of the most notable issues in real estate and land use & environmental law:

Residential Closing Best Practices Requirements by Amanda Barritt

2016 saw the CFPB regulations and Best Practices requirements move into high gear with respect to financed residential closings. Lenders, attorneys, and title companies have invested a lot of time and money coming into compliance. However, the results of the national election, along with the ruling in the case, PHH Corporation v. CFPB, are causing these players to question whether any, or all, of the CFPB lending regulations will be done away with. For now, Melissa Murphy, Senior Vice President and General Counsel of the Attorney’s Title Fund, suggests slowing down on making significant investments in Best Practices, while continuing to make sure to comply carefully with RESPA, Section 8(c) requirements as to affiliated business arrangements until we see what happens in 2017.

Condo & HOA: Fire Sprinkler Retrofitting by Molly Maggiano

As the year winds down to an end, the opportunity for condominium associations to opt-out of fire sprinkler retrofitting is also coming to a close. The subject of fire sprinkler retrofitting proved to be a hot topic during the course of the year, due in part to communications put out by the Florida Division of Condominiums regarding the applicability of the obligation to retrofit, which left many associations who thought they were exempt confused as to whether they were subject to retrofitting, whether they should conduct an opt-out vote, and the implications of such a vote. This resulted in an abundance of frantic calls to association attorneys who were also dismayed and left to wonder whether the Division would clarify its statement. Thankfully, the Division did correct its communications, but the ordeal emphasized the importance and benefits of having a qualified association attorney on hand in crucial situations such as this.

2016 Significant Foreclosure Decisions by Shannon Puopolo

Foreclosure filings continued to decline in 2016. Notwithstanding, some significant foreclosure decisions came out this year. Below is my “Top 3” List:

  • The Florida Supreme Court affirmed the decision of the Fifth District Court of Appeal in Bartram v. U.S. Bank, N.A., holding that where an initial foreclosure lawsuit is dismissed by the court, such dismissal does not trigger the application of the 5-year statute of limitations, which would otherwise preclude a lender from filing a second action. Rather, the court held the lender is only prevented from suing on installment payments that are more than 5 years old.
  • The Eleventh Circuit Court of Appeals held in Failla v. Citibank, N.A. that where debtors file a statement of intent to surrender their residence in Chapter 7 bankruptcy, they must also waive any defenses or counterclaims raised in a pending state court foreclosure action.
  • The Fourth District Court of Appeal held in Ober v. Town of Lauderdale-by-the-Sea that the lis pendens statute does not discharge liens that are recorded and based on conduct which occurs after the date of the final judgment of foreclosure, even if such liens attach to the real property prior to the date of the foreclosure sale.

Land Use Law by Austin Turner

It was an exciting year for land use and environmental law at both a state and local level. On January 21st, CS/CS/SB 552 was enacted to comprehensively address issues such as Everglades restoration. In response to threats like the Lake Okeechobee algae blooms and the Zika virus, the Governor declared several States of Emergency which led to permit extensions. Recently, a supermajority of Florida voters approved one of the two renewable energy measures establishing a constitutional ad valorem tax exemption for solar power. Locally, Lee County residents approved a non-binding referendum for Lee County’s land acquisition and stewardship program, “Conservation 20/20.”

On behalf of the Real Estate and Land Use team at Henderson Franklin, we wish you and yours a very Happy Holiday season and New Year. Please enjoy our 2016 e-card benefitting the Golisano Children’s Hospital of Southwest Florida:

 

 

As we wind down to the end of 2016, I wanted to offer a few gifts to you and your family or business from our family at Henderson Franklin. Below, I have included a few things we have talked about this year that you may want to keep in mind as we move into 2017:

  1. When using VRBO or Airbnb to rent your home to another family this holiday season, be cognizant of the frequency and duration limitations to avoid having the state attorney’s office drop a misdemeanor sized lump of coal in your holiday stocking.
  1. Remember that the restrictive covenant imposed by the governmental zoning approval allowing Santa to park his sleigh on the roof won’t be extinguished by MRTA. You’ll have to find a different way to stop Santa from getting into your chimney and eating your cookies.
  1. If, during this holiday season, you realize the market has bestowed upon you the gift of significant home appreciation, consider updating your title insurance policy to help ensure the title defect Grinch doesn’t steal your gift in the future.
  1. Community Associations, in particular, be careful of who you characterize as naughty or nice when reviewing purchase or lease applications. You wouldn’t want HUD to leave a gift-wrapped discrimination suit under your tree this year.

From our family to yours, we hope you all have a wonderful holiday season! By the way, if you talk to Santa, please tell him to email me at michael.lehnert@henlaw.com. I am still waiting to hear if he received my wish list this year. Thank you.

Lease.jpg“An ounce of prevention is worth a pound of cure.” “Penny-wise, pound foolish.” “A stitch in time saves nine.” Few would doubt the universal application of these time-honored pearls of wisdom. Yet when it comes to legal documents, common sense goes by the wayside.

Contract? What Contract?

As a litigation attorney, there have been instances too numerous to count where a potential client calls me about a legal problem. When I ask to review the contract or document at issue, I’m usually met with a response that there is no document or, if there is one, it was not drafted by an attorney. The client then spends thousands of dollars in legal fees correcting a problem that should have been avoided in the first place.

Continue Reading Commercial Leasing Best Practices

We all understand the value of preparing for hurricane season, but what about tourist season?

In the last post, we talked about the need for a license if you intend to rent your property out on short term intervals.

Now that you know whether you need a license to rent out your second home or condo, have you considered the benefits of using a written rental agreement?

Sure, it’s convenient and friendly to allow a stranger on VRBO to rent your property and only require that he or she pay a modest security deposit up front. In a perfect world, the renter would pay rent, not damage the property, follow all of the rules, and this arrangement would work out wonderfully every time.

Benefits of a Written Rental Agreement

Continue Reading Vacation Rentals: Are You Prepared?

IMG_3202Relatively recently, sites like VRBO have revolutionized how people travel. They also have made it easier for the average person to rent out their home without the need for professional assistance.

Are you considering renting your second home or condo during this fast-approaching Southwest Florida tourism season? If so, have you considered that you might be fined if you don’t have a license?

What You Need To Know

Florida law requires anyone in Florida renting a home to guests more than three times a year for stays which are less than 30 days to have a license. This means most of the people listing their homes on VRBO or otherwise advertising their house as available for rent to the public need to get a license from the DBPR- Division of Hotels and Restaurants. Continue Reading What You Need to Know if You Are Considering Signing Up with VBRO

matthewsimmons1We recently had the privilege of sitting down with Matt Simmons, State-Certified Residential Real Estate Appraiser and partner at Maxwell Hendry & Simmons.  Given the importance of the real estate market to our community, it is nearly impossible to distill the wealth of data Matt and his firm have in a short blog. But, it’s always fun to try!

Q: You have great data to share, and you mentioned that often the data can be skewed if viewed in isolation. What do you see as the most misunderstood information reflecting the SWFL market?

Continue Reading Insight into the SWFL Real Estate Market: Q&A with Matt Simmons

From left to right: Ryan Binkowski and Alexis Crespo (Waldrop Engineering) with Molly Maggiano and Austin Turner (Henderson Franklin)
From left to right: Ryan Binkowski and Alexis Crespo (Waldrop Engineering) with Molly Maggiano and Austin Turner (Henderson Franklin)

This year’s two day Urban Land Institute (ULI) Annual Florida Summit was held in Miami at the Turnberry Isle Resort and was comprised of more than 650 attendees. The theme of this year’s event was Creative Disruption: “The Future Ain’t What it Used to Be.”

The mission of ULI is to provide leadership in the responsible use of land and in creating and sustaining thriving communities worldwide. ULI is an independent global nonprofit supported by the top real estate professionals from throughout the state including developers, attorneys, engineers, architects, and land use planners, from both the private and public sector.

The “Creative Class”

Continue Reading “The Future Ain’t What it Used to Be”- 2016 ULI Florida Summit

Objection. Compound question.

But the answers are:

  • A phrase used to describe rights in real property; and
  • Because the bundle of sticks is valuable and each of the individual sticks has value.

I first heard about the “bundle of sticks” when I was at law school. My property professor talked about the bundle of sticks when describing the variety of rights that a property owner has:  rights to what’s underground, rights to the ground, rights to the air. I didn’t appreciate the usefulness of the concept until I’d been practicing as a dirt litigator—sorry, real estate litigator—for several years.

Each stick represents a different property right, and depending on the words in the deed or other document by which you acquire title, you may be entitled to exercise all, or only some, of the rights associated with a piece of real estate.

Now why is this important? The amount you pay for a piece of property may vary depending on what rights—sticks—are present and what rights have been retained by the grantor/seller. For example, the grantor/seller might retain the right to extract minerals. You don’t have the entire bundle of sticks and your property could, conceivably, be worth less as a result.

So when buying real estate, be sure to find out if you’re getting the entire bundle of sticks. And when you own property, beware when the government, or a private company with the power of eminent domain, wants to take one of your rights. Don’t let them “stick” it to you.

 

Image courtesy of Oliver Schöndorfer under Flickr Creative Commons License

iStock_000015122897XSmall.jpgIncreasingly, paper is becoming a thing of the past, and although the law is notoriously slow to follow trends, it has been rather quick to latch onto the digital wave.

It is as if some black-robed man with a curly white wig slammed down the gavel and proclaimed, “All men witnesseth that heretofore law shall no longer move like a snail, but rather shall transpire at the speed of light!”

In 2000, Congress actually made such a proclamation; it passed a law making electronic documents and electronic signatures valid in almost every legal fact, except wills, certain trusts, and some relatively esoteric commercial transactions.

Continue Reading Florida Real Estate Law Meets The Digital Age: Are Electronic Documents Valid?