As a Florida real estate attorney, one topic that I am commonly asked about is homestead. One question frequently asked by clients is:

Is it possible for their spouse to waive his/her homestead rights? If so, how?”

Why Would a Spouse Waive Homestead Rights?

More often than not, one spouse has already provided for the other spouse through their estate planning documents, insurance policies, or payable on death accounts and would like to devise their homestead per their testamentary wishes.

The issue here arises from the fact that the Florida Constitution restricts either spouses’ ability to devise their homestead in their will. For example, if Spouse A wants to leave his homestead to his brother (instead of his spouse), he cannot leave his homestead to his brother in his will if he is survived by his spouse or minor child.

So what then happens when Spouse A has no minor children, and Spouse B wants to waive his/her rights in the homestead?

Florida Senate Bill 512

Continue Reading Can My Spouse Waive His/Her Homestead Rights in Florida?

Florida’s Third District Court of Appeal recently handed down a decision that may make the lives of landlords and tenants a little more difficult.

In Jahangiri v. 1830 North Bayshore, LLC, the owners of a Miami deli tried to exercise their first renewal option under a commercial lease. The tenants were not able to exercise their first renewal option because the Court ruled that the renewal provision lacked a definite price term or definite procedure to determine the price term in the future.

Background

La Bottega on the Bay, LLC, entered into a written lease for commercial property in Miami with landlord 1830 North Bayshore, LLC. The lease contained the following provision:

RENEWAL OPTIONS: Upon six months [sic] notice and provided [lessee] is not in default of any provision of this Lease, LESSOR agrees that [lessee] may renew this Lease for two five-year renewal options, each renewal at the then prevailing market rate for comparable commercial office properties.”

Throughout the initial five-year term, the tenants timely paid rent and were otherwise in compliance with the terms of the lease. Upon trying to renew the lease under the Renewal Option, the landlord refused to renew. The tenants then sued to enforce the Renewal Option.

Ruling

Continue Reading Florida Appeals Court Rules Terms in Commercial Lease Too Vague for Renewal

Growing up out West, discussed a bit in my post about The Magnificent Seven and the Freedom to Choose, I remember going with my granddad and my dad when they hunted.  Like many families, we had a special nickname for granddad; we grandkids knew him as “Pompa,” from a name my oldest cousin, as a toddler, gave him.

When I was a kid, the first day of hunting season was a state or school holiday, if I remember right.  I was too little to carry a rifle, so I got up early, put on orange, froze my fingers and toes off, and had to be quiet and sit still.  Pompa would get his limit every year, which meant lots of venison and home-made jerky.  I remember the year my dad got a cow elk—lots of elk steak and elk burger for months!  Continue Reading Dogs, Hunting, and Inverse Condemnation, Oh my!

Earlier this year, we blogged about various measures being taken by the Collier County Commission to raise revenue for various projects and improvements. These “bold steps” included (1) implementation of a 25% increase to the County’s tourist tax (from 4 to 5 cents per dollar); (2) presentation of a sales tax increase via ballot measure; and (3) creation of a stormwater utility.

The Collier County Commission reconvened in September 2018, after their customary summer break. September brought some surprises (e.g., postponement of the stormwater utility effort), and made clear that the Board once again has its hands full as it begins a new “season” and fiscal year. Below is an update on the status of these three important initiatives.

Bed Tax Increase

Continue Reading Update on Collier County’s “Bold Steps” to Raise Revenue in 2018

You have saved and are ready to build the house of your dreams. If you select the wrong contractor, however, it could quickly turn into a nightmare. There are plenty of great contractors in Southwest Florida but there are a few not so great. How do you know the difference? Below are five tips to help you with the contractor selection process: Continue Reading 5 Ways to Protect Yourself Before Selecting a Contractor

On December 20, 2017, I co-authored an article, Business Rent Tax Reduced Beginning January 1, 2018, that discussed the Florida Legislature’s decision to lower the Business Rent Tax (“BRT”) from 6.0 percent to 5.8 percent.

On March 23, 2018, Governor Scott and the Florida Legislature delivered another win for Florida’s business community with House Bill 7087. House Bill 7087 amends section 212.031 of the Florida Statutes to further reduce the BRT from 5.8 percent to 5.7 percent beginning on January 1, 2019.

Considering the impact on occupancy costs, any reduction in the BRT is welcome and those involved in commercial leasing will want to take note of this reduction when preparing leases that commence in 2019.

As with all tax matters, please consult with your tax professional. If you have any questions regarding the Business Rent Tax reduction and its effects, please contact me at caleb.hinton@henlaw.com or by phone at 239-344-1125.

For most people, buying a home is the most significant purchase of their lives. If you are purchasing property together with another person, then one issue to consider is how you and the other parties (as the buyers) want to take title to the property. How do you want to own the property? The manner in which a purchaser takes title to property can have significant consequences depending on the situation whether that be the death of one of the owners or the souring of a personal or business relationship.

Three Ways to Own Property

Generally, title agents will ask you how you want to take title or will provide a form for you to fill out indicating how you want to take title. If you are buying property by yourself, then the options are straight-forward because as the buyer, you are going to take title as either “a single man” or “a single woman” or “a married man” or “a married woman.” However, what happens when a buyer is purchasing property with someone else and what are the ways buyers can take title jointly? More often than not, buyers purchasing property jointly take title one of three ways: tenants-in-common (“TIC”), joint tenants with full rights of survivorship (“JTWROS”), or tenant by the entireties (“TBE”). Other options to consider may be forming a corporation, limited liability company, or trust to take title, but those options are not being covered by this post.

Tenants in Common

Continue Reading I Am Buying a Home with Someone Else, How Should I Take Title?

Merriam-Webster’s on-line dictionary defines “ripe” in several ways. One example is “fully grown,” as in the case of ripe fruit. The Black’s Law Dictionary, 7th edition, on my credenza defines “ripeness” as:

[t]he circumstance existing when a case has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made.”

That’s a lot of fruit in one bite.

According to a recent decision of Florida’s Fourth District Court of Appeal in GSK Hollywood Development Group, LLC v. The City of Hollywood, Florida, in order to bring a claim under the Bert J. Harris, Jr., Private Property Rights Protection Act, the claim must be ripe.

What Does “Ripe” Mean Under the Bert Harris Act?

Continue Reading Fruit Should be Ripe; Your Bert Harris Act Claim Must be Ripe, Too!

An interesting ruling came down this week in an Airbnb case stemming from tenants illegally offering apartments for short-term rentals in violation of their lease agreements in South Florida.

Background

Bay Parc Plaza Apartments filed suit in 2017 against Airbnb with multiple claims of trespass, tortious interference with a contract, and violations of the Florida Deceptive and Unfair Trade Practices Act.

Airbnb attempted to have the case dismissed based on protections under the Communications Decency Act (CDA). Because the CDA protects operators of internet services from liability for content posted from third parties who use their services, Airbnb argued that short-term rental listings on their website posted by tenants within an apartment building qualified as third party content and Airbnb, therefore, is immune to suit for that content under the CDA.

Ruling

Continue Reading Does Free Speech Protect Your Right to Sublease in Florida?