Florida Real Estate Legal Questions

Ultimately this situation comes down to the contents of Timeshare Agreement. If you review the contract and determine that there is no way you can get out of the Timeshare Agreement. I would consult an attorney who does a substantial amount of contract work to determine if any of the provisions in the agreement are illegal in Florida and thus NOT enforceable.  If you feel up to the task, you may review the Florida statutes yourself to determine if any of the provisions of the agreement are unenforceable because the Florida statutes are available online. I've provided the link below:  http://www.leg.state.fl.us/statutes/ Please let me know if you have any questions and good luck!... Read More

The process is relatively simple. A refinance of the mortgage should take your name off of the property and thus remove any liability you have on the mortgage. Generally what I do is I include a provision in the separation agreement that requires the spouse -- who is taking full ownership of the property -- to refinance his/her mortgage on the property within 60 days after the divorce judgment. Please let me know if you have any other questions.  Best Regards,  Alex Venakides ... Read More

Sure, if they aren’t paying, you should be able to evict.  However, I’d really suggest employing a lawyer to do it for you.  The notices that must be given, must be very precise.  If you mess up the notice, the tenant may overcome the eviction – so it is crucial that step is done properly.  With proper notice and filing, the eviction shouldn’t really take too long.  And be wary of trusting “forms” found in an online search.  For your own research, you can go to Chapter 83 of the FL Statutes.  As far as what all you can get back, your attorney can look at the lease to see what all it says as well as the totality of the situation, but you may also be able to get damages, back rent plus future months, etc.  I can’t say for sure what all you can get without seeing the lease and knowing a little more about the situation.  ... Read More

Dear Anonymous, Your facts are a bit confusing and hard to follow, but what it sounds like is that the property was your mother-in-law's homestead. If so, her husband (step-dad) probably "inherited" an interest in the property by operation of law. However, if there was no will, per FL Stat Sec. 732.401, the step-dad is only entitled to a life estate or possibly 1/2 fee simple as tenant in common in the property . Your wife (a direct descendant) and any other of mom's kids (the son), inherited a vested remainder interestin the property as well. Homestead law is an extremely complex area of law in FL. If I am correct, the Grandmother probably has no legal interest in the property, but your wife and her brother (the son?)  probably do. However, a remainder interest  gives no right to current possession so the son  will probably be forced to leave as well. Also note:  Step-dad will probably never be able to sell or mortgage the property outright without your wife's ok, so she should try to work out a deal to sell her interest to step-dad.  ... Read More

Sounds like the Seller’s making a pretty weak argument to get out of the contract.  It wouldn’t hurt to hire a lawyer to review the terms of the contract to give you a full legal opinion.  Generally, a real estate contract hinges on the Buyer bringing the money and the Seller giving clear title.  Now, of course, that’s an oversimplification of the issue.  In the contract, there should be a section that deals with what’s a breach and what happens if the Buyer breaches and what happens if the Seller breaches.  If the Seller decides not to sell, you may be able seek specific performance (make him sell) or the contract may say you get damages of some sort (money).  I would be surprised if not defining what type of financing the Buyer is going to obtain is a valid reason to get out of the contract.  What’s important is that you actually get the financing by the date the contract says you have to confirm that you have financing.  Without seeing the actual contract, it is unfortunately impossible to say exactly what legal position you are in.  ... Read More

Well, I 'm unclear on what you are asking. I assume you are asking who is responsible. First, technically an open permit is not a defect of the title. An open permit would never appear on a "title search" It affects the property itself, but doesn't operate as a cloud on the title. The role of the title company is limited to matters of title. Also, they are not lawyers and don't act as legal representative of the parties to advise buyers of the need to check for open permits. Typically, florida contracts places the burden on the buyer to inspect the property to determine whether there are any open permits (inspection services do this regularly).  Note: There is a provision in most contracts which says that Seller is not aware of any open permits. This might be interpreted as a Seller's warranty but it is very watered-down and it's unclear whether it is enforceable after closing. The best way to deal with it is to open a new permit for the AC and then have it closed.  Charles Sanford   772 492-1695... Read More

Unfortunately, there’s no one simple answer to your question.  The factors that play into it are numerous.  The options that are out there may range from packing up, moving out, and accepting the eventual foreclosure judgment with potential for a deficiency judgment to cash for keys, etc.  And watch out for non-lawyers pretending to be lawyers trying to give you advice.  I would highly recommend seeking the advice of a local foreclosure defense attorney.  To really know your options, you’re going to need to discuss the totality of your situation in a confidential environment.  ... Read More

If you and your siste own the property (joint owners on the deed), you both have a right to possession. You can't stop her from moving in, however you can try buying her interest or if that fails you can seek a legal partition of the property, which in most cases results in a court ordered sale of the property. Once sold the proceeds are divided. Certainly, if you can't live with each other, the cheapest way to deal with this is to work out an agreement with your sister to buy/sell.... Read More

Look to your lease with the tenant first.  FL Statutes 83.53 gives you what you’re looking for if nothing is set in stone with the lease agreement.  Basically, the tenant can’t unreasonably withhold consent to enter.  So, best thing is an agreement on how much time, but generally 12 hours’ notice to enter at a time between 7:30am-8pm is probably going to be considered reasonable.  Best bet is probably to just work it out with the tenant… but make sure you do provide the notice.  In my experience, tenants that are moving out of their own accord aren’t too interested in throwing up roadblocks to the place being re-rented; that said, if they do, look to your lease and the statutes for your rights and duties.... Read More

It’s possible.  Unfortunately, I simply can’t say without a review of the contract.  Generally, residential real estate contracts will have provisions that tell you exactly what your rights are in these situations – what you can do, when you can do it, and what course of action you can take.  Since the consequences can be pretty high (again, depending on the contract) for cancelling the deal when you shouldn’t, I’d say you’d be best served by consulting a real estate attorney to review your contract (and perhaps negotiate your exit if the contract allows it).  Keep in mind that even if a contract allows you to get out, there may also be certain things you have to do in order to fully protect yourself.  An attorney can review and let you know these steps and what you’re entitled to.  As just a final note, while your realtor is an excellent source of information, he or she is not an attorney… but, maybe just as important, they have an interest in the deal going through so they get the commission.  Best of luck.... Read More

Take a look to FL Statutes 83.49(3)(a).  If the landlord is making a claim on the security deposit he has 30 days from when you left to send the notice by certified mail.  You then have 15 days from receipt to respond if you are disputing it.  Ok, so here, if I understand, you moved out at the end of the lease and the landlord sent a notice that he was claiming $550 out of the $1,000 security deposit for “paint.”  You disagree regarding this charge.  You should respond as such.  That may just result in you getting back $450, in which case you’ll need to take the landlord to small claims court for the remaining $450.  You can do this on your own, but you may find it helpful to hire an attorney to help you out.  Some handle these types of claims on a payment basis that makes sense – but that’s a situational thing.  You can find info on small claims procedures from your county’s clerk of court (generally on the website.)  Best of luck.... Read More

You’re essentially just giving a private mortgage.  On what you’ve provided, I’d say you need to have a Note and a Mortgage that secures your interest to the property.  Then record the Mortgage in the county where the property is located.  This will secure your interest in the property since anyone that does a title search will see that you have an interest (Mortgage) in the property.  If it is to be sold, you should be paid at closing; thereby, clearing the title and settling the outstanding Note and Mortgage.  By the same token, in the Mortgage, you also work out the different variables, like what happens if there’s a default and the process details… for example, what notice prior to a foreclosure, etc.  Probably not something you want to do on your own – an attorney can have this drafted up for you pretty quickly and affordably.... Read More

Perhaps I’m misunderstanding the situation, but as I understand it the Bank won a foreclosure judgment against you and the home was sold at auction for more than what the judgment stated.  Therefore, there is an outstanding balance that is owed to you, correct?  If so, that should be held by the Clerk of the Court.  If that’s the situation, it just takes a motion and a hearing in front of the judge to show that you are, indeed, entitled to those funds.  Then, the Court orders the Clerk to release the funds to you.  A check gets issued and that’s it.  I see no reason for a 33% contingency fee on that, but, again, that’s if I understand the situation correctly.... Read More

Going on what you’ve written, I think you’d have a hard time arguing that its unenforceable in Florida.  Main items I tend to look for are whether it is reasonable in terms of time and geography.  I think you’d be on the losing end of successfully arguing these are unreasonable.  Now, as far as your question about what would happen if you placed your license with a competing broker within 250 miles less than a year (aka breaching the non-compete)… well, likely first you and your new broker would likely get a pretty nasty demand letter from your previous broker’s attorney.  Basically, you’ll be told that if this goes through, you’re going to be sued.  The suit will likely be to get an injunction from placing your license in breach of the non-compete.  Essentially, they’ll be seeking strict performance of the non-compete.  You may have some room in the contract with the ambiguity of “competing broker,” but I would caution against laying my hat on that.  Like anything, sometimes the details make all the difference, so if you really want to get advice specific to you and your situation, consult with an attorney to see exactly where you fall legally. ... Read More

Under Florida probate law, as the owner of the note and mortgage of the deceased homeowner you are considered a priority creditor of their probate estate.   I recommend that you review the terms of your note and mortgage to determine whether the mortage is considered in default after the death of the homeowner.  You will then want to notify the dececent's child of the outstanding loan obligations and find out whether a probate case has been filed.   In many cases, the deceased homeowner will purchase life insurance to pay off the debt owed on their principal residence.   If there is no life insurance available and the child cannot afford the mortgage, you may have to file a foreclosure case against the estate.   I recommend that you seek the advice of a probate attorney to review the terms of the mortgage and to assist you in filing your claim in the probate estate.     ... Read More

Sounds pretty fishy to me.  Unfortunately, even despite the efforts that have been taken to irradicate foreclosure scam artists, they're still out there.  I can't say for sure on these facts, but I've seen schemes like this before that were scams.  I'd make an appointment with a local foreclosure defense or bankruptcy attorney as soon as possible to figure out what's been done and what's going on.  The fee for the bankruptcy seems pretty low which makes me think it may be a non-attorney.  And the rental scheme just doesn't seem to quite fit.  Act quickly - if its not a scam, at least you'll be able to know why and what's going on and if it is, you may be able to stop the bleeding and take steps to correct the ship.... Read More

Doubt it.  Even assuming you could try to claim this as a material defect (which is extremely doubtful), did they take active steps to cover up the fact that smoking was permitted in the home?  Did you do a walk through/inspection?  This is probably something you should have noticed, so I’m doubtful you would be successful claiming that there was some type of impropriety on the seller’s part that would allow you to claim damages.  That said, each situation turns on its own facts, so you may find it helpful to consult with an attorney based on your specific facts.... Read More

Sounds like either a communication problem between the Landlord and his previous rental agency or a bad break up between the Landlord and the previous rental agency.  Either way, sounds like you’re the one stuck in the middle.  The first thing I’d want to see is the lease; presumably, the agency used the FL Realtors – Residential Lease for Single Family Home or Duplex.  Under parties, it should only have you and the Landlord.  The rental agency works as the Landlord’s agent.  Generally, it will have provisions that basically you deal with them for everything unless the landlord says differently…sounds like here the Landlord is saying differently.  Have you been asked to sign anything with the new rental company or have you been given any written notice to pay the new rental company?  I would want to have something in writing from my landlord before I start paying the new folks.  You might find it helpful to spend a little time and a few bucks to have an attorney review your lease and perhaps clear up the communication issue for you.  As to whether the old can take you to court, they may try assuming that they are still legally the Landlord’s agent; however, if the Landlord ends such relationship, then the Landlord would be the one to evict.  Main concern here – figure out to whom you are legally obligated to submit the check – and that requires the lease agreement and any written notices you’ve received altering the agency relationship.... Read More

Well, although it may seem simple, that’s a pretty loaded question.  The nuts and bolts are pretty simple… you can buy and sell property in the name of the business.  However, numerous potential risks do exist, as well as potential tax issues.  While this venue doesn’t really lend itself to a dissertation on all of the possible risks, I would advise you to consult with two very important people on these transactions – your CPA and your attorney.  Basically, you have all of the normal risks of buying property overlaid with issues concerning keeping in line with your business entity (i.e. are you keeping within the bounds of authority to make these decisions, bind the company, keeping proper records, etc.).  Now, one other issue that I would raise is to be very careful if you created the LLC solely for the purpose of ‘hiding’ property.  You do not want to get into a situation where you are making what’s called fraudulent transfers.  For example, if you (individually) have a property that goes into foreclosure, simply transferring the title into an LLC you created isn’t going to be your saving grace and may just put you into hot water.  It doesn't sound like you're in that situation, but just keep that in mind.  Sit down with an attorney to discuss your particular situation and plans in a confidential environment and you can create a plan of action from there.... Read More

I recommend that you confer with a lender regarding whether your resident alien daughter will qualify for more favorable loan terms if she is a part owner of the property.  If the response from the potential lender is positive, then you will need to convey (via a warranty deed) the property from you to you and your daughter (I presume each as to an undivided one-half interest).  Since your facts indicate that the value of the property is under $300,000 and your daughter will continue residing at the property, you should be able to avoid the 10% FIRPTA withholding on the transfer.  Keep in mind that once your daughter is on the title, then you both have to agree to any sale or mortgage. If the property is in a condominium or an HOA that requires approval of any transfer, your daughter will also likely need to apply for approval from the association.  The foregoing is specific to the law and procedure in Florida.  This response does not constitute legal advice as the facts presented are limited and unstated facts will likely impact your particular situation. This response is intended for general education only and does not create an attorney-client relationship. Please schedule a consultation with a local attorney for more specific and detailed answers to your legal issues.... Read More

Typically, you would use a warranty deed in an arms length transaction. In Florida, your realtor will likely provide you the contract for sale and the title agent or your attorney will prepare the appropriate deed. The type of deed will be dictated by the purchase agreement.  In addition to providing a deed, typically the agreement will provide for title insurance, transfer of other related assets, representations, warranties and other terms and conditions.  I recommend you seek the assistance of a qualified realtor and, if needed, an attorney, to guide and assist you with this transaction, especially if you are out of state.... Read More

In order to have a lien removed from the record, you need to obtain a Satisfaction of Lien or Mortgage, in recordable form. Recordable form will include a notary and witnesses. You can find a form to use online by Googling Satisfaction of Lien. You will want to be clear what type of Lien you are satisfying and use the form that applies for that type of lien. [ie. a Mortgage lien is staisfied with a Satisfaction of Mortgage, while a judgment lien will be called Satsifaction of Judgment Lien.] You may also want to check with the Division of Corporations and see if a lien was filed with the Secretary of State. You will want to have that one removed as well. Keep evidence that you paid in full. It is important because sometimes credit reporting agencies and others will pick of the lien information and not the satisfaction. After you have paid off the lien and filed satisfactin paperwork, do not be surprised to find the lien still appears on credit reports. Run a free credit report and send the information showing that you have satisfied the debt to the credit reporting agencies, as they instruct you to do so, to clear these reports. I hope this helps you. It is a matter of diligence to get your credit to show the lien has been satisfied.   ... Read More

Dear anonymous, This question can't be definitively answered w/o reviewing all documentation and correspondence.  However, I will point out that you stated that you asked the Sellers for an extension which was denied, this suggests that the closing date arrived and that you were not able to provide funds to close on the closing date. This in itself could be a breach causing you to lose your deposit. The exact timing of the events you described could also be critical.... Read More