During the latest law-making session, Florida’s legislators authorized a means for landowners to seek extensions for certain state-regulated development permits, citing the struggling real estate market and likelihood that many permits may expire before market conditions improve. The Lee County Board of County Commissioners has taken note, and has a similar authorization for four-year local development approval extensions on its Tuesday, October 11 agenda.

The proposed resolution authorizes Department of Community Development Director Mary Gibbs to process requests to grant four-year extensions to expiration dates of:

  • Development Orders
  • Zoning Master Concept Plans, and
  • Concurrency Certificates

The approvals must have been issued between January 2, 2006 and August 9, 2011, and the holder of a valid permit that is eligible for the extension must notify the county in writing no later than February 29, 2012, identifying “the specific authorization(s) for which the holder intends to use the extension and the anticipated timeframe for acting on the authorization.”

If extended, the permits will be subject to the local development rules in effect at the time the county issued the permit, unless it can be demonstrated that those rules would create an immediate threat to public safety or health. Additionally, if a code violation exists on a property whose owner is seeking an extension under this provision, the violation must be abated prior to an extension approval.

Charles J. Basinait of Henderson Franklin’s Land Use and Environmental Law Division spearheaded this effort to seek consideration of these extension provisions. We are pleased to have been a part of this effort that will benefit many of our clients and other permit holders within the county.

On a final note, not all permits may be extended and other factors such as comprehensive plan, land development code and statutory changes may affect these approvals. A time extension may not be enough to preserve a project’s entitled development rights. Therefore, in addition to seeking time extensions, a comprehensive review of all project permits may be warranted to ensure that these entitlements are protected.

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To continue our series to recap the Real Estate Investment Society’s “Challenges and Strategies for Property Development Today” workshop, and to follow Cody Vaughan-Birch‘s post on Development Incentives and Local Pro-Growth Policies, the second panel of professionals provided an overview of the current trends, challenges and strategies in property development from a legal and practical perspective.

Southwest Florida Real Estate:  Problem or Opportunity?

Steve Hartsell, a zoning and land use attorney with the Pavese Law Firm, summarized two circumstances where legal and practical strategies are needed:

Continue Reading Practical Strategies for Dealing with Challenging Properties

The Real Estate Investment Society and Urban Land Institute conducted a workshop, “Challenges and Strategies for Property Development Today,” last Thursday morning in Fort Myers. Mary Gibbs, Lee County‘s Director of Community Development, got right to the point:

All properties today are challenging. Nothing’s easy anymore,” noting that property location, infrastructure availability, and objections from surrounding residents seem to be the most common constraints. 

Local governments are reacting to these economic and site-specific development difficulties by implementing changes and adopting more business friendly approaches to complex development issues that may delay or kill potential new projects.
 
Bonita Springs City Manager Carl Schwing joined Ms. Gibbs in a panel discussion regarding tactics and strategies local governments can utilize to help facilitate private development in a difficult economy. Both indicated that engaging in discussions with local government development staff 

Continue Reading Southwest Florida Officials Provide Insight on Development Incentives and Local Pro-Growth Policies

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In Maronda Homes, Inc. of Florida, et al, v. Lakeview Reserve Homeowners Association, Inc., the Supreme Court of Florida will soon determine whether common law implied warranties extend to the construction of common areas and facilities of a residential subdivision.

The Facts
After the turnover of control by the developer, Maronda Homes, the Lakeview Reserve community experienced drainage problems. Upon hiring an engineer to conduct an inspection, the Lakeview Reserve Association determined defects exist as to the paved streets, retention ponds, underground drainage pipes and grading of the site and lots. As a result of such defects, multiple lot owners allegedly experienced stagnant water, sinkholes, loss of grass, and erosion on their lots. 

The Association filed a complaint against Maronda Homes for breach of implied warranties of fitness for a particular purpose, merchantability, and habitability arising out of the alleged defective construction of the common area improvements. The Association claimed that the developer failed to construct the common areas properly to support a residential subdivision and the homes within it. The trial awarded a summary judgment to the developer. 

Continue Reading Florida Supreme Court to Hear Developer and HOA Battle Over Common Area Warranties

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“Short sales” deserve attention as we continue focusing on opportunities in a down real estate market. As you probably know, a short sale is where the current lender agrees to release property from the lien of the mortgage in exchange for less than the outstanding mortgage debt. Shorts sales gain popularity as owners owe more on their outstanding mortgage than their property is currently worth.

The devil is in the details with commercial and residential short sales. All parties to the transaction (seller/borrower, lender, buyer, guarantor(s)) should consider how to protect themselves with written agreements. This article will examine some of the critical terms that should be reduced to writing when navigating a short sale.

Essential Contract Terms

A short sale comes to life when a contract for sale is executed by the seller/borrower and buyer.  At a minimum, the contract should clearly state that the transaction is a short sale and provide 

Continue Reading Short Sales: Don't Sell Yourself Short

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Everyone we speak with seems to be in the same boat with today’s real estate market – things may be giving some small indications of movement, but nothing seems to move as quickly or as easily as it used to. Many properties are uniquely challenged with a host of issues that need to be worked out before actual sale or development can take place – be it permits, taxes, legal issues like easements, access, development approvals, financing…the list goes on!

In recognition of these interesting times, the Real Estate Investment Society (“REIS”) and Urban Land Institute are partnering to host a half-day workshop on September 22, 2011 at Pelican Preserve to give presenters from a broad cross-section of the development community to discuss what they’re seeing in the market and how they’re dealing with the various challenges they face. The workshop will host three panels:

We are extremely excited for this educational workshop and look forwarding to hearing from all of these experienced professionals in how they’re navigating today’s tough market. More information on the workshop can be found at www.reis-swfl.org. We hope to see you there!

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The Fourth District Court of Appeals of Florida recently affirmed the position that a property owner cannot knowingly ignore an impediment to the title of their property. In Nunes v. Allstate Investment Properties, Inc., (So.3d —, 2011 WL 3107801) the Personal Representative of the Estate of Kathleen L. Phillips, and Marilyn Ann Nunes, individually, (collectively “Nunes”), filed a declaratory action to determine Nunes’ right to certain property which she contended was wrongfully conveyed to the current property owners through a series of conveyances originating with a forged deed.

Nunes’ former son-in-law and husband forged a warranty deed transferring her interest in the real property to Allstate Investment Properties, Inc. (“Allstate”) on October 6, 2003. Allstate, not knowing that the deed was forged, transferred the property to a third party on December 25, 2003; and, the third party subsequently transferred the property to the current owner on December 15, 2004.

The court found that Nunes had actual knowledge of the forged deeds, which was discovered during the deposition of Nunes’ husband during divorce proceedings in May of 2004. After learning of the forgery, Nunes took no action to protect her interests in the real property. The current owner took title seven months later (December of 2004).

The 4th DCA cited Coram v. Palmer, 58 So. 721, 722 (Fla. 1912), wherein the Florida Supreme Court held:

If one man knowingly, though he does it passively by looking on, suffers another to purchase and expend money on land under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right.”

The court further cited Zurstrassen v. Stonier, 7[86] So. 2d 65, 68-69 (Fla. 4th DCA 2001), which held that the doctrine of equitable estoppel as set forth in Coram v. Palmer applies to forged deeds.

In affirming the lower court‘s decision that Nunes was equitably estopped from asserting any interest in the property, the 4th DCA stated that Nunes’ failure to timely assert her interest in the real property, although having numerous unrestricted opportunities to do so, was “tantamount to affirmative representation to the public as a whole that ‘go ahead and buy as I don’t have an interest in this property.'”

Bottom Line

Should you become aware of anything, be it a lien, encumbrance or purported conveyance affecting your property rights, you have the duty to timely take action in order to protect your property rights. In these situations, hesitation kills.

It’s that time of year again – the time we rush to our mailboxes to see if today’s the day we receive our TRIM (truth in millage) notices from the Lee County Property Appraiser showing our proposed property taxes for 2011.

Generally, the TRIMs are mailed mid-to-late August and contain a lot of information you should be aware of. Specifically, once you receive your TRIM, take notice of the following:

  • the proposed assessed value of your property;
  • the deadline to file any challenges administratively – this date is 25 days from the date the TRIM is mailed so you don’t have a lot of time;
  • the dates of hearing for any particular taxing authority if you disagree with the proposed tax rate; and
  • be sure your property address and STRAP (parcel identification) number are correct – otherwise, you may pay tax on the wrong property!

It is also important to note whether any exemptions you may qualify for have been correctly applied. Your TRIM will contain contact information for Property Appraiser staff who can assist you with specific questions you may have. Henderson Franklin’s Land Use attorneys may also be able to assist you with any appeals you may decide to file.

In recent years, procedures for hearings before Lee County Hearing Examiners have evolved formally and informally, sometimes resulting in confusion and frustration for the parties, the public, and the hearing examiners themselves. A recent amendment to Lee County Administrative Code Section 2-6, aims to eliminate uncertainty in special exceptions, variances, zoning cases, and other matters like administrative appeals. Some are simple changes (for example, the “24-hour pre-hearing memo” is now the “48-hour pre-hearing memo”), while others are more complex and require a greater understanding of legal procedure than ever before.

The following is an attempt to highlight some of the more significant changes found in Lee County Administrative Code Section 2-6, however it is not intended to provide a comprehensive summary or analysis of all changes. 

Continue Reading New Lee County Code Re-Writes Hearing Examiner Rules

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Non-compliance with Florida Statute §720.401 can be fatal to the closing of a purchase and sale contract. Given the current real estate climate, sellers of residential property cannot afford to lose a sale, or become involved in a lawsuit due to mistakes associated with the required homeowner’s association disclosure (“Disclosure”) specified in such statute. By understanding the law and being aware of the mistakes, a seller and his/her agent can increase the odds of closing a sale without an adverse surprise.

The Law

Florida Statute Section 720.401, requires owners of real property subject to a homeowner’s association(s), to deliver to a potential purchaser the Disclosure prior to contract execution. The form of the Disclosure must be substantially in the same form as identified in the statute.

Non-Compliance

As a practical matter, the Disclosure is seldom signed before contract execution because the selling agent does not typically know of all the required assessment information to be included in 

Continue Reading Tips to Avoid Common Mistakes on Florida HOA Disclosures