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With increasing frequency, I am receiving calls from people who want to remove someone from possession of a residence owned by the caller. Invariably, the caller insists that the possessor should be evicted, but upon closer inspection, the claim really isn’t an eviction action. In this post, I will explore the three similar, but distinct, actions available for possession of real property in Florida.

Eviction

Probably the most familiar claim for possession is one for eviction. In its most basic form, an action for eviction results when the occupant of the property has failed to pay rent to the property owner. Florida Statutes Chapter 83 governs actions for eviction. An action for eviction requires a landlord-tenant relationship. That relationship is typically established by showing that the property owner and occupant have signed a lease agreement for the property. Even in the absence of a written lease, a landlord-tenant relationship can be established by showing that the tenant made periodic rent payments (weekly, monthly, bi-monthly, etc.) for the privilege of occupancy. Keep in mind that rent need not be money, but in certain circumstances may be goods or services. If there is no landlord-tenant relationship, then there cannot be an eviction. An eviction action proceeds under an expedited (summary) procedure, so a plaintiff usually can obtain a judgment of possession within 60 days.

Ejectment

Continue Reading What Options Do Owners Have to Take Possession of Real Property in Florida?

The homestead application filing deadline of March 1 is approaching quickly. Below is a snapshot of eligibility and documentation requirements for real property owned in Lee County, Florida.

What is the Homestead Exemption?

The homestead exemption is a constitutional benefit of up to a $50,000 exemption deducted from the assessed value of the property.

Who Is Eligible to File for an Exemption?

Individuals whose names appear on the deed, who reside on the property as of January 1, and who are bona fide Florida residents as of January 1 are eligible to file. To be eligible for the exemption this tax year, an owner must file an Application for Homestead and related documents with the County Property Appraiser no later than March 1, 2015. Only new applicants or those who had a change of residence are required to apply. For individuals who have previously filed for and been approved for the homestead exemption, notices of automatic renewals should be received from the Lee County Property Appraiser in January of each year.

Lee County’s Application Requirements

Continue Reading Homestead Deadline Approaching for Lee County Landowners

With the uptick in real estate activity it is helpful to recap the two primary ways that a licensed sales agent is entitled to a commission from the sale of real estate.

Contract

Most agents have their clients execute a listing agreement, which primarily comes in two forms and entitles the agent to a commission in different contexts.

Generally, the exclusive right to sell agreement entitles an agent to a commission irrespective of who sells the property. For instance, an owner who executes an exclusive right to sell agreement and consummates a sale to a buyer without the aid of the agent is still obligated to pay the commission. Intuitively, an owner might think that once the contract expires without the agent procuring a buyer, the agent’s right to a commission is extinguished. However, most exclusive right to sell agreements contain “protection period” provisions that extend the agent’s right to a commission for a certain number of months after expiration of the agreement. These provisions trigger the agent’s right to a commission if a sale is consummated with a buyer whom the agent or seller communicated with (regarding the property) while the listing agreement was in effect.

The second type of agreement is the exclusive agency agreement. Contrary to the exclusive right to sell agreement, this contract simply means the owner will not enlist another agent to sell the property. These agreements normally do not entitle the agent to a commission unless the agent procures a ready, willing and able buyer. Thus, an owner who consummates a sale without the agent’s aid is not obligated to pay the agent a commission.

Doctrine of Procuring Cause

Continue Reading Primer on Real Estate Commissions

Lawsuits regarding nondisclosure of a home’s problems are becoming more prevalent. Historically, the rule of “caveat emptor” or “buyer beware” was the prevailing standard in residential transactions. However, the law has evolved and Florida now requires sellers of residential property to make certain disclosures to buyers about the property’s condition and history. An increasing number…

Nationwide, one out of every five homes in foreclosure are abandoned — equating to a total of 170,000 abandoned homes, according to recent studies. Florida accounts for 33% of that figure, or about 55,000 abandoned homes. Florida cities, in fact, represent 85 out of the top 100 cities based on total number of owner-vacated foreclosures. Lee County’s city of Cape Coral is #13 on that list, with over 2,200 owner-vacated foreclosures.

To combat the security problems that can arise from vacant homes and the potential blight on neighborhoods and communities, counties and municipalities across Florida have responded by passing Abandoned Property ordinances. These ordinances place registration, inspection and maintenance obligations on lenders during the mortgage foreclosure process. Lee County recently passed its Abandoned Property Ordinance, which took effect January 2014:

When Registration is Required for Lenders

The lender obligations under the ordinance are triggered in a number of instances, but most commonly, lenders will need to register their properties when either a notice of foreclosure is filed or a notice of default is given to the property owner. Lenders should be cognizant that a mere default letter to the borrower — without filing a foreclosure lawsuit — requires the lender to register the property.

Additionally, lenders who have acquired title through a deed in lieu of foreclosure or a foreclosure sale are required to register their respective properties, even if they held title prior to January 1, 2014 – i.e., lenders who acquired title prior to the ordinance’s enactment are not exempt.

The ordinance does not distinguish between commercial and residential properties. For example, a commercial lender who has provided a notice of default to a property owner or who has acquired title through a foreclosure sale is required to register the property with the County. Nor does the ordinance distinguish between institutional lenders and private lenders.

What Registration Entails

Continue Reading Lenders Beware: Lee County Passes Abandoned Property Ordinance

The Foreign Investment in Real Property Act of 1980 (mercifully shortened in real estate and tax circles to “FIRPTA”) is a federal law designed to collect taxes on a foreign seller’s “disposition” of real property held in the U.S. The Act casts a wide net and applies not only to the sale of both commercial and residential properties, but also other real property interests such as swimming pools, mines, crops, and timber, just to name a few. Besides the typical sale of real property, the Act also extends to foreclosures and corporate mergers/reorganizations, among other “dispositions” of real property.

Foreign Investment on the Rise

With both residential and commercial real estate prices rising, but still deflated from the highs in 2008, both the U.S. as a whole, and Florida in particular, have experienced an influx of foreign investment in real estate.Continue Reading Increase in Foreign Investment = Increase in Tax Implications for Florida Real Estate Buyers

Last month I wrote about the importance of due diligence before a contract is signed when purchasing commercial property. This month’s article discusses a buyer’s due diligence after the contract has been signed but prior to closing and taking title to the property.

As stated in last month’s article, a buyer must perform due diligence…