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short term rentalsSouthwest Florida is a prime location for people to bring their family and friends to vacation. Whether it’s the golf, beaches, or just the beautiful weather, Southwest Florida has solidified itself as a great destination for vacations. This has made tourism a major industry, and one of the biggest areas of tourism is hotels and rentals for families staying in the area.

However, in recent years families have been more inclined to try to rent a home for a short period rather than booking a hotel room. According to Section 509.013(4)(a)(1.) of Florida Statutes, a short-term rental is defined as a residence rented for less than thirty days and rented out more than three times a year.

With the rise of the vacation rental industry, local governments and their residents have seen the impacts they have on the community. This led to two major questions – how can local governments regulate these short-term rentals or how can they prohibit them?

History of Short-Term Rentals

Vacation rentals have always been popular but were not always readily available or easy to find. A revolution occurred in the early 2000s with the rise of the internet and along with that came online rental platforms. Now there are many different platforms, such as Airbnb and VRBO, which made short-term rentals much more available. Further, this led to an overall increase in the number of rentals available.

This increase in rentals led to issues amongst local governments and their citizens because of the impacts short-term rentals had on the community, both positive and negative. Local governments began to ban or create regulations around these short-term rentals. Because of the divide and lack of consistency in regulation by local governments, the Florida legislature created a law that prohibited any local government from banning short-term rentals and limited how they may be regulated.

Effect of the New Legislation

Continue Reading Can Your Local Government Ban Short Term Vacation Rentals?

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unlicensed contractors Hurricane Ian made direct landfall in Southwest Florida, destroying thousands of homes and buildings. The destruction will now require the mobilization of hundreds of contractors in the construction industry. Unfortunately, a tragedy like Hurricane Ian will also attract a number of unlicensed contractors who will try and take advantage of desperate victims trying to rebuild their homes and businesses.

As Southwest Florida starts the rebuilding phase, here are a few things residents should be aware of:

Before you hire a contractor, ask to see their state-issued license

Whether you need roof repairs or mold-related services, you want to ensure the person you hire is licensed and insured. The definition of “contractor” under Section 489.105, Florida Statutes, requires that any person who seeks to

construct, repair, alter, remodel, add to, demolish, subtract from, or improve any building or structure” must have a license.

Allowing an unlicensed contractor to perform work on your property puts you at risk of liability and could cost you more in the end. Generally, unlicensed contractors do not have workers’ compensation and liability insurance. As a result, the property owner may be liable for any injuries that occur on site.

You may check your contractor’s license by going to www.myfloridalicense.com.

Unlicensed contracting is a felony

In Florida, unlicensed contracting is generally charged as a first-degree misdemeanor, with penalties of up to one year in jail or 12 months of probation, and a $1,000.00 fine.

Continue Reading Unlicensed Contractors: What You Need to Know

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As a result of Hurricane Ian, permits and development orders may qualify for an extension. According to Florida Statute § 252.363, when a governor declares a state of emergency permits can be extended for the duration of the state of emergency. Additionally, permits will be extended six months after the state of emergency expires.

Executive Order 22-218, which declared a state of emergency, was made effective on September 23rd, 2022, and if it is not extended, it will expire 60 days after its announcement, which is November 22nd, 2022.

First, it is important to note which counties are affected by this state of emergency. Initially, Executive Order 22-218 declared a state of emergency for a list of specific counties. But, on September 24th, 2022 Governor Desantis issued Executive Order 22-219 expanding the state of emergency from the specific counties originally listed to the entire state of Florida.

Continue Reading Due to Hurricane Ian, Florida development orders and permits qualify for extensions

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A large part of my law practice deals with “takings”—a situation where a government authority with the power to condemn, or a private entity with the power to condemn, has taken private property. Takings falls primarily into one of two large categories:

  1. “Direct takings,” which is when a government or private entity, like a utility, files a lawsuit to acquire private property through the court system; and
  2. “Inverse” or indirect condemnation, which is when a government or private entity has taken private property without using the court system.

In the case, Orlando Bar Group, LLC d/b/a The Basement, The Attic and the Treehouse v. DeSantis, the Fifth District Court of Appeal decided that Governor DeSantis’s executive orders from March 2020 did not amount to a taking of private property. Even though Governor DeSantis’s executive orders:

  • suspended all sales of alcoholic beverages by entities deriving more than fifty percent of their gross revenue;
  • suspended the sale of such beverages for on-premises consumption;
  • limited the operation of bars to seated service; and
  • restricted operational capacity to half of the typical occupancy previously permitted,

the Fifth DCA determined that those executive orders did not amount to a taking of private property.

Continue Reading Governor DeSantis’s COVID-19 Closings Not a Taking of Private Property

vacation propertyAccording to the National Association of Home Builders, in 2018 there were approximately 7.5 million second homes, making up 5.5 percent of the total number of homes. These homes are not only real estate that must be planned for, managed, and maintained. They are also the birthplace of happy memories for you and your loved ones. Following are some important estate planning questions to consider to ensure that your place of happy memories is protected.

What Will Happen to the Property at Your Death?

The fate of your vacation property at your death largely depends on how it is currently owned. If you are the property’s sole owner or if you own it as a tenant in common with one or more other people, you need to decide what will happen to your interest in the property. If you own the property with another person as joint tenants with rights of survivorship or with a spouse as tenants by the entirety, your interest will automatically transfer to the remaining owner without court involvement. If a trust or limited liability company owns your vacation property, the entity will continue to own the property after your death. The trust instrument or operating agreement may lay out additional instructions about what will happen at your death.

What Do You Want to Happen to the Property at Your Death?

Continue Reading Important Questions to Ask When Investing in a Vacation Property

ConsiderWhether you are involved in rezoning land or obtaining a special exception, conditional use, variance, development order, or other entitlement to land in Florida, you will likely need approval from the local government where the property is located. But what if your request is denied? This article explores some of the common remedies available to an applicant in the event their application is denied.

If your application is denied, it’s important to know your options. While some jurisdictions have administrative remedies available for an applicant to exhaust (e.g., rehearing, reconsideration, administrative appeals, etc.), others may not. It is important to be familiar with local rules, including land regulations, ordinances, administrative codes, and any applicable staff interpretations. Exhaustion of available non-judicial remedies is an important consideration in any potential land use challenge.

In addition to exhaustion of any available local remedies, the following is a brief overview of some common legal remedies that could be available to an applicant in the event of a denial:

Petition for writ of certiorari

This process involves filing a fairly-detailed petition with the local circuit court within 30 days from the date of the denial. It can take many months, even years, to conclude. This is the typical “zoning appeal,” and the standard of review is whether the local government’s decision is supported by competent substantial evidence, whether there were any procedural due process violations, and whether the decision maker followed the essential requirements of the law. See Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla. 1982). Each party typically pays its own legal fees.

“Consistency challenge”

Continue Reading What options are available to challenge denial of a land use application in Florida?

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

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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 Loved 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?

Forgetting to turn on the air conditioner before heading back up north for the summer and coming back to find mold growth.

An undetected pipe leak.

Forgotten running faucets that spill over onto the floor and beyond.

These types of incidents can be inconvenient and expensive for anyone, but they pose a heightened threat to any of the persons living in the approximately 1.5 million residential condominium units in Florida.

By its nature, condominium ownership requires cooperation and some forfeited freedom of its residents by putting neighbors in close proximity to each other with shared common elements. As summarized by Florida Fourth District Court of Appeal,

[c]ondominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization.”

Hidden Harbour Estates, Inc. v. Norman, 309 So.2d at 181–82. This close proximity of living creates an expanded zone of risk, with the action (or inaction) of one person potentially affecting multiple neighbors.

As a result, unit owners are charged with being more diligent in the use of their units. For example, some condominiums pass rules regarding the frequency of cleaning out dryer vents to reduce the risk of a fire. In a single family residential home, neglecting to change a dryer vent can be done at one’s own risk; in a condominium where a fire can quickly cause widespread destruction to an entire building, that risk is unknowingly being assumed by all of the unit owners – not just the resident who opts to run the dryer for a fifth time instead of folding laundry.

But regardless of the language in governing documents that require owners to maintain their units, or take certain actions and refrain from others, accidents happen. When damage results, who is responsible? More often than not, the answer to the question “who is responsible for fixing this?” is, frustratingly for owners and associations, “it depends.” And it depends on a number of factors.

Maintenance Obligations

Continue Reading Distinguishing between maintenance responsibility and financial responsibility in the wake of damage to condominium property