The 2021 Florida Legislative session, which ended on April 30, 2021, was an active one for proposed community association legislation.
The following community association-related bills have either been signed into law or have passed the House and Senate and are pending signature by Governor DeSantis, with anticipated effective dates provided: Continue Reading 2021 Florida legislative session brings significant changes to community association laws
I 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.
There 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.
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.)
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.
Earlier this week, Florida Governor Ron DeSantis signed S.B. 72 into law, which grants some civil immunity to business entities against plaintiffs bringing COVID-19 injury and wrongful death claims. A review of the impact S.B. 72 has on business entities and civil claims is provided by my colleague and litigation attorney Heath Gelman here. The bill applies to “certain business entities,” in recognition of the public interest as a whole served by
providing relief to these business … so that they may remain viable and continue to contribute to this state.”
Among other types of businesses included in the definition of “business entities” are corporations not-for-profit under Sec. 617.01401, Fla. Stat. Based on a plain reading of the law, this would include condominium and homeowners’ associations, although it remains to be seen how the application of the law will be interpreted as it percolates in Florida courts.
Continue Reading New COVID-19 Civil Immunity Law Provides Relief to Florida Condo and HOAs
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.
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.
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.
Continue Reading Construction of Docks, Piers, and Other Waterfront Structures in Southwest Florida
Our team previously wrote about pet restrictions in a 2014 article located here. Nearly six years later, pet restrictions continue to be a breeding ground for confusion, particularly with respect to fair housing and discrimination laws and as those laws relate to recent legislation which took effect in July 2020.
According to statistics provided by The Humane Society of the United States, approximately 67% of all households throughout the United States had a pet based on data collected from 2019-2020. While pets have become a mainstay in most American households, they are not necessarily as common in condominium and homeowners association. The governing documents of many community associations impose limits on the types and number of pets a member or tenant may keep in a unit or home.
These pet restrictions take varying forms; sometimes, the goal is to curtail what are deemed to be aggressive or dangerous breeds as defined by the governing documents. In other instances, a restriction may limit the number of pets a single owner may keep, or may define what types of animals are deemed domesticated and permitted to be kept as a pet at all.
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.
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
You may recall that we blogged about a rare trial court victory for property owners back on May 23, 2018. Since then, that case has been to the Fourth District Court of Appeal, yet again. The most recent opinion from the Fourth District upheld the trial court’s jury verdict awarding the land owner $2,000,000, plus pre-judgment interest in the amount of $1,302,577.
Interestingly, the Fourth District Court of Appeal also upheld the trial court ruling that excluded Indian River County’s economist and appraiser. The Fourth District concluded that the trial court “properly excluded the economist’s and the appraiser’s testimony, in part, based upon the Bert Harris Act’s plain meaning.”
Continue Reading Bert J. Harris, Jr. Private Property Rights Protection Act Update
Guest post by Gregory Herman-Giddens, Esq.
When it comes to your estate planning, how should you handle your timeshare? If you have a revocable trust, should you transfer ownership of the timeshare to your trust? Should you instead continue to hold it in your name, or jointly with another family member? What if you do not use it very often and, despite your efforts to get your adult children to use it, it mostly just goes unused? Here are a few things to consider.
Suppose you find significant value in timeshare ownership. You may want to consider retitling the timeshare in the name of your living trust. In Florida and most states, and depending on the contract, a timeshare interest is considered real property. This is important to know because in most states if you die owning real property in your sole name, it will be subject to an often timely and perhaps expensive probate proceeding for it to pass to your heirs. In Florida, probate and attorneys’ fees for a proceeding to transfer a time share can exceed $5,000. Owning your timeshare in your revocable trust is one of the best ways to ensure that your named trust beneficiaries can take ownership of your timeshare after you are gone without going through probate.
When you first purchase a timeshare, make sure you understand the requirements to transfer it at your death. If the seller cannot with certainty tell you how you can transfer the timeshare (and show you language in the contract supporting their answer), you should seek the counsel of an experienced timeshare or real estate attorney before signing the contract. This distinction can make a difference of thousands of dollars of probate costs and frustration upon your death or disability. You will also want to check your contract or with the timeshare management company to determine whether there will be a fee assessed for the transfer of your timeshare from your name to the name of your trust.
Ultimately, the decision to title your timeshare into the name of your trust is a very fact-specific decision. Asking questions and reading your timeshare contract carefully can help you avoid costly mistakes.
Continue Reading Should You Own Your Timeshare in Your Trust?