What is a Florida Land Trust?

A Florida Land Trust is a private legal agreement between one or more parties for the purpose of holding title to real estate. The legal rights and obligations of the parties to the land trust are governed by the provisions of the Florida Land Trust Act. The land trust separates property ownership between the property’s legal ownership in the trustee’s name and the property’s beneficial ownership by the trust beneficiaries. The beneficiaries completely control the use and conveyance of the real estate while legal record title is held in the name of the trustee. A Florida Land Trust can be used in connection with an estate plan, real estate transaction, or as part of a business deal.

Benefits of a Land Trust

Privacy: Record title to the real estate is held in the name of the trustee while the beneficiaries (a/k/a owners) remain anonymous. Under Florida law, the trust document does not need to be recorded, so the trust terms are also hidden. Moreover, this makes it very difficult for creditors to discover the true owners of the property and attach their interest.

Creditor Liens: Normally, a creditor’s judgment recorded with a county’s official records becomes a lien on all real property titled in the debtor’s individual name. When title to real property is held in a land trust, a judgment creditor will not acquire a judgment lien on the property owned in a land trust merely by recording the judgment in the county where the property is located. However, judgment creditors can still reach the beneficial interest of a trust beneficiary, but it requires a more difficult and expensive legal process.

Probate Avoidance: If the trust agreement is drafted carefully and correctly, the ownership interest of a deceased land trust beneficiary will automatically pass to his or her heirs or beneficiaries, thereby avoiding a costly and time consuming probate administration process.

Alternative to Business Entity: A land trust can be used as an alternative to the formation of a business entity, such as an LLC or partnership, to hold title to real estate. Business entities must file with the Florida Secretary of State and pay annual filing fees. Conversely, a land trust is not filed with the Florida Secretary of State and there are no annual filing fees.

Homestead Exemption: The beneficiaries of a Florida Land Trust qualify for Florida’s Homestead Exemption for tax purposes and for protection from forced sale by a judgment creditor.

How to Create a Land Trust

You should always consult with and retain an attorney if you want to create a land trust and not try to create one on your own. The experienced attorneys at Loshak Law PLLC routinely help their clients establish land trusts for various purposes. Call our office today at 954-334-1122 or contact us online to schedule your free consultation.

A “lady bird deed,” also known as an enhanced life estate deed, is an effective way to transfer real property to someone else outside of probate while retaining a life estate in the property. This type of deed got its nickname when President Lyndon B. Johnson used it to convey real estate to his wife, Lady Bird Johnson. The good news is that Florida is one of the few states that legally recognizes this type of deed.

Enhanced Life Estate Deed in Florida

A lady bird deed is often just called an enhanced life estate deed which is an effective and relatively inexpensive estate planning tool which can be used to transfer title onto whoever is designated in the recorded lady bird deed after the life estate holder passes away. A life estate is a right to live in the property until your death. When you pass away, the real property passes to your beneficiaries designated in the lady bird deed, called the remaindermen.

With a regular life estate, the life estate holder must get the remainderman’s consent to sell, transfer, or mortgage the property. But with an enhanced life estate, the life estate holder can do that on his own without permission or consent from the remainderman. Moreover, the grantor is still able to sell, mortgage the property, or outright cancel the deed during his or her lifetime.

Avoidance of Probate

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts and distributing the decedent’s assets to his or her beneficiaries. One of the main advantages to a lady bird deed is that it passes automatically to the remainderman without the need for an expensive and time-consuming probate administration. This is similar to a transfer-on-death option in relation to a bank, retirement, or other investment account, but it only works for Florida real estate.

Advantages

A lady bird deed has several advantages:

Grantor is still able to sell, mortgage the property, or outright cancel the deed during his or her lifetime.
Avoidance of probate
Retention of Florida homestead benefits
Preservation of Medicaid eligibility
Step-up in capital gains tax basis for your beneficiaries

Disadvantages

However, there are also some disadvantages:

Lack of asset protection from creditors
Unfavorable consequences for predeceased beneficiaries
Ineffectiveness against Florida constitutional restrictions for a surviving spouse or minor child

To learn more about lady bird deeds and other estate planning techniques, call the attorneys at Loshak Law PLLC today at 954-334-1122 or contact them via e-mail for a free consultation.

Short-term real estate rentals have always been popular in South Florida’s vacation meccas. But since the advent of websites and apps that make them available to national and international audiences, that popularity has soared. And that hasn’t gone unnoticed – especially in Fort Lauderdale, where a local ordinance was specifically enacted to “mitigate the effects of short-term vacation rentals in an attempt to make them safer and more compatible with existing neighborhoods.”

Here’s what you should know if you currently own a Fort Lauderdale property that you’d like to list on sites such as Airbnb or Vrbo, or if you want to buy a property for short term rental/vacation rental use in the Fort Lauderdale area.

Fort Lauderdale’s short-term vacation rental ordinance: the backstory

The city’s current ordinance stems from a failed attempt to ban the use of single-family homes as short-term vacation rentals back in 2010. In that particular case, a special magistrate determined that a homeowner who used her single-family residence as a short-term vacation rental violated city codes by doing so. The owner then appealed the decision to the 17th Judicial District.

On appeal, the judge determined that:

The city did not have any ordinances regulating such rentals.
It could not ban the activity in question based on existing zoning rules that generally prohibited commercial activity in residential neighborhoods.

As it turned out, Section 509.032(7)(b) of the Florida Statutes proved to be a major hurdle for the city in the case. That’s because this particular rule prevents a city from creating any new rules or enforcing any existing local law, ordinance or regulation banning vacation rentals or curtailing the length or frequency of vacation rentals.

Luckily, however, Florida Statute Section 509.032(7) allows a local government to regulate vacation rentals. That paved the way for the City of Fort Lauderdale to adopt Ordinance Article X, Chapter 15 back in August 2015.

As adopted, Fort Lauderdale’s ordinance includes conditions designed to:

Lessen negative effects of short-term vacation rentals
Promote safe short-term vacation rentals
Enhance property values
Ensure that the inclusion of short-term vacation rentals contribute to greater neighborhood cohesiveness

It is is also meant to balance private property rights and short-term vacation rentals with other considerations by means of responsible development and regulatory criteria.

Requirements for certificates of compliance

Before a Fort Lauderdale home listed as a vacation rental can be occupied as such, its owner must now get a certificate of compliance. The basic requirements for getting one are:

Submission of a completed registration application;
Payment of a registration fee paid to the City of Fort Lauderdale;
City and county business tax receipts;
A Certificate of Registration issued by the Florida Department of Revenue for purposes of collecting and remitting taxes, sales surtaxes, and transient rental taxes;
A Transient Public Lodging Establishment License issued by the Florida Department of Business and Professional Regulation;
An affidavit as proof of compliance with the City of Fort Lauderdale’s Vacation Rental Standards (set forth in Section 15-278), and all local, state, and federal laws, regulations and standards; and
The Vacation Rental Lease Agreement that will be used to rent the vacation rental property.

Property owners seeking certificates of compliance must also provide the name and contact information for someone who shall be available 24 hours per day, seven days per week to handle complaints and emergencies while the property is used as a vacation rental.

The cost of using a home as a vacation rental in Fort Lauderdale

The Department of Sustainable Development’s Community Enhancement and Compliance Division administers and enforces the city’s Vacation Rental Registration Program.

Accordingly, it is responsible for ensuring that vacation rental owners do not have any outstanding license or tax obligations. It also ensures that all vacation rental properties meet minimum housing and life safety standards set forth in the ordinance detailed above. Lastly, it collects the following fees associated with the program. These include: a $350 Vacation Rental Registration Fee that covers the first two inspections (for a maximum of 4 units under the same roof); a $160 Non-Owner Occupied Vacation Rental Renewal Registration Fee; and an $80 Owner Occupied Vacation Rental Renewal Registration Fee. You can find a full fee list here.

The bottom line

So far we’ve addressed concerns that are largely relevant to current property/homeowners who may be interested in listing their Fort Lauderdale home as a vacation rental to make some extra money. But what if you are considering buying a Fort Lauderdale home and listing it as a vacation rental as a real estate investment? Clearly, the city’s climate, location, proximity to globally recognized tourist attractions make this an intriguing possibility.

However, you should be prepared to spend at least $300,000.00 to $500,000.00 to acquire a desirable property. Secondly, you’ll need a business license. You should also be aware that inspections for these properties are mandatory. Finally, you should be aware that short-term rentals here are taxable.

In any case, seeking legal advice from a qualified South Florida business and/or real estate lawyer from the get-go is critical. Contact Loshak Leach, LLP by phone at (954) 334-1122 to learn more about how we can help you find the right property AND meet all of the legal requirements for a Fort Lauderdale vacation rental today.

Eminent domain law in the state of Florida is complex. This law covers the compulsory purchase of land and property by government agencies for future projects, such as roads, utilities, or other projects. One of the most commonly cited forms of eminent domain is what is known as “right of way”. Here is what you need to know about eminent domain law and right of way surveying in Florida.

Right of Way in Florida

Under Florida eminent domain law, right of way surveys are boundary surveys which depict the limits of the private ownership of property and that of a public entity which has an interest in the property – be it a state, county or city government agency.

Right of way titles are usually held to be owned by the government agency which stakes a claim to the property. In this way, right of way differs from an easement, where the rights to the use of the property by others are concerned – not the ownership.

How is Right of Way Determined?

For a right of way claim to be successful, extensive research is essential to make a correct determination of the land which is to be deeded right of way. This research is conducted by an experienced surveyor. The surveyor will investigate the route of any pipelines as covered under the Transmission Line Siting Act or the Natural Gas Transmission Pipeline Siting Act.

If any additional rights of way which have been claimed by maintenance which has been uninterrupted for more than four years, a new, updated maintained map may need to be filed before a right of way is officially determined. It should be noted that a right of way survey generally does not include any below or above ground improvements to the property, or a survey of any other features or encroachments other than the utilities subject to the right of way claim.

Fair Compensation for Right of Way Purchases

When the right of way has been determined, the government agency is required to acquire the land for a fair asking price. Usually, property owners are contacted roughly half-way through the process when the legal descriptions and sketches of the proposed utilities are planned. State law requires “full compensation” for property owners, meaning that they receive whole restitution for the loss of the land claimed under right of way. This compensation includes the value of the land taken, as well as restitution for any damage to the remaining property, costs to remedy these damages, and reasonable fees for any experts hired by the property owner.

Contact an Experienced Florida Attorney Today

Because of the complexity of eminent domain and right of way claims in the state of Florida, if your property is subject to a right of way claim, you need to speak with an experienced and knowledgeable real estate and eminent domain attorney right away.

At Loshak Leach, LLP, we have a combined 15 years’ experience in Florida land use and zoning law. We provide our clients with custom tailored representation to help get them the compensation they deserve. Our firm offers unsurpassed customer service and personal dedication to you and your case. So, if you are looking for a land use and zoning law firm as committed to the successful transaction of right of way claims as you are, call Loshak Leach, LLP today at (954) 334-1122.

It’s something savvy real estate investors have known about for years. Now we’re letting you in on the not-so-closely guarded secret. Under Section 1031 of the Federal Tax Code, people can defer payment of capital gains taxes on the sale of a property that has appreciated, as long as they reinvest the proceeds in another property. However, there’s a catch – to take advantage of this opportunity without running afoul of the IRS, you must play by the rules – and there are quite a few. Here’s what you need to know to stay out of trouble:

First of all, as IRC Section 1031 (a)(1) stipulates: “No gain or loss shall be recognized on the exchange of real property held for productive use in a trade or business or for investment, if such real property is exchanged solely for real property of like-kind which is to be held either for productive use in a trade or business or for investment.”

In other words, you can sell a property that has appreciated and use the money to buy more real estate as long as the new property is kept for business use or as an investment. Or, to put it another way, if you own a commercial garage that you lease to a mechanic or body shop, you can sell it and use the money to buy an empty lot where you want to build something else. On the other hand, if you are a mechanic who leases the commercial garage and you want to retire, sell your business and use the money to buy a house in the country, you can’t do a 1031 exchange because you don’t own the property.

Here are some other things to keep in mind regarding purchases and sales in 1031 exchanges. You can’t use your primary residence in a 1031 exchange, and all properties involved in a 1031 exchange must be located in the United States. Finally, as a taxpayer, you can sell a property to a related party in a 1031 exchange but the transaction is subject to a two-year holding period. And as a taxpayer, you cannot buy property from a related party in a 1031 exchange.

Another important rule pertains to the deadline for identifying the new property once the sale of the old property is finalized. Once the first part of the transaction in a 1031 is legally concluded, you have 45 calendar days to find a new property to buy. If you haven’t entered into a contract on a new property within the specified time, you must still provide a detailed list of the properties you are interested in before the deadline expires. While there are no limits on the number of properties you can identify within the 45-day window, there is a limit on the total value of the new properties if you choose more than three. Specifically, it cannot equal or exceed twice the value of the property you sold.

In addition to the deadline for finding the new property/properties, there is a deadline for closing on it (or them). As stipulated in Section 1031, you have roughly six months (180 days) to purchase and close on one or more of the new properties after the closing of the old one. Because the 45-day deadline for identification and the 180-day deadline for closing on the new property/properties run simultaneously, the actual window for closing on the new property can be limited to 135 days. In any case, the subject of the transaction must be one or more of the properties included on the 45-day identification list.

Here are some more rules to keep in mind:
• You cannot handle the transaction yourself
• The person or entity who held title on the property that was sold must also hold title on the new property/properties
• To delay full payment of the capital gains tax on the old property, the new property must be worth at least as much or more than the old one.

Clearly, this is a valuable tool for investors. But as we have seen, it is also a complicated process. If you’re a real estate investor, business owner, or just a savvy real estate buyer, contact us today to find out how Loshak Law PLLC can help you complete a 1031 exchange today!

Across the state of Florida and the entire country, debates are raging about when to reopen the national and state economies. Meanwhile, the Corona virus continues to spread (albeit at a slower rate) and the economy continues its downward spiral, with over 26.5 million Americans facing unemployment and no real signs of recovery. Amid this turmoil, many are finding it difficult to make their mortgage or student loan payments, let alone ordinary monthly bills. For residents and businesses in South Florida unable to meet their financial obligations as a result of the pandemic, there are several relief options available.

Executive Order Addresses Evictions and Mortgage Payments

In an executive order signed April 2, 2020, Florida Governor Ron DeSantis put a temporary halt on all foreclosures and evictions statewide. As per Executive Order 20-94:

Any statutes allowing mortgage foreclosure causes of action under Florida law are suspended and tolled for 45 days from the date of the Executive Order, including any extensions.
Any statute providing for an eviction cause of action under Florida law, solely as it relates to non-payment of rent by residential tenants due to the COVID-19 emergency, is also suspended and tolled for 45 days from the date of the Executive Order, including any extensions.

Governor DeSantis’ Executive Order also stipulates that nothing contained therein “shall be construed as relieving an individual from their obligation to make mortgage payments or rent payments.” In other words, if you are able to meet these financial obligations, you should continue to do so.

Understanding Mortgage Forbearance Afforded by the CARES Act

The CARES Act also provides temporary relief to homeowners now struggling to pay their mortgages due to financial hardship stemming from the COVID-19 pandemic. Under the Act, mortgage forbearance is available to homeowners with FHA, VA, USDA, Fannie Mae and Freddie Mac and similar government-backed mortgages.

A forbearance allows a homeowner (i.e. the “borrower”) to halt or reduce his/her mortgage payments for a short pre-determined period. In general, your lender or loan servicer may offer a loan forbearance because it allows both parties to avoid time-consuming and costly legal battles or collection attempts. Due to the CARES Act, the forbearance process has been streamlined with most lenders, as they rush to comply with the new federal guidelines.

Forbearance or similar relief options may also be available to homeowners with non-government backed or private loans. Because the terms of these loans may differ, it’s important to check with your lender or loan servicer about the specific options available to you.

Here is a list of available relief options from the 10 largest lenders and loan servicers in the US:

Quicken Loans – Mortgage Assistance During COVID-19
TD Bank – Options for U.S. Customers in Response to the COVID-19 Pandemic
Huntington Bank – COVID-19 Relief Programs and Support Resources
Regions Bank – Resources for Business and Individuals
SunTrust Mortgage – Mortgage Assistance Programs
Cooper – Mortgage Assistance Support
Flagstar Bank – COVID-19 Mortgage Payment Assistance
Bank of America – Client Resources
Wells Fargo – COVID-19 Resources and Support
JP Morgan Chase – COVID-19 Update and Resources

No matter what type of mortgage or loan you have, keep in mind that forbearance does not nullify your normal payment obligations. Generally, you are still responsible for repayment of any missed or reduced payments in the future, unless your lender has agreed to “forgive” all or some of the loan. Again, this means you should continue to make regular monthly mortgage payments if you are capable of doing so.

Relief Options for Federal Student Loans

The CARES Act also provides relief to individuals who can’t afford to pay certain federally held student loans due to financial hardship associated with the pandemic. As stipulated in the CARES Act, principal and interest payments on these loans are automatically suspended through September 30, 2020. Even if you normally have auto-pay set for these loans, the automatic suspension will stop any such payments.

You should be aware however, that not all federal student loans are held by the Department of Education or subject to the provisions of the CARES Act. For example, commercial lenders actually own some loans made through the Federal Family Education Loan (FFEL) Program. Furthermore, the college or university you attended may own certain Perkins Loans given to their students. It is therefore important to see if provisions of the Act are applicable to your specific loan(s) or if different options may be available.

Suspension of Certain Lawsuits in Florida

Finally, if you are currently involved in litigation of any sort, you should be aware that a suspension of many Florida court proceedings remains in effect through the end of May 2020. These include non-essential court matters, such as civil jury trials.

All such matters should be “rescheduled, postponed or canceled,” as per Administrative Order AOSC20-23 issued by Florida Supreme Court Chief Justice Charles Canady on April 6, 2020. The only exception is for those matters that “can be conducted by conference call or other technology that would prevent the need for in-person appearances.”

On April 21, 2020, Chief Justice Canady also established the “Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19” to develop a working plan for the continuation of court operations and proceedings in a manner that protects health and safety. The Workgroup is made up of various judges statewide and is tasked with presenting its findings to the Chief Justice “as they are developed” to avoid costly time delays.

If you are a current client with Loshak Law PLLC, please contact us to see how your case may be affected.

Loshak Law PLLC is Here to Help

The COVID-19 pandemic continues to cause financial hardship for many Floridians and people across the country. If you have specific financial concerns associated with your debt obligations or inability to pay your bills, please feel free to reach out to Loshak Loshak LLP to see how we can help. You can reach us online or by calling our Fort Lauderdale office at (954) 334-1122.

Ancillary probate involves real estate and other personal property that a decedent leaves behind in a state other than where they lived at the time of their death. The probate process can be complex and time-consuming, even when all of the property is in one state.

If you are handling ancillary probate administration in Florida, you will need an experienced probate attorney. To learn more about the ancillary probate in Florida, contact Loshak Leach, LLP.

Understanding Ancillary Probate in Florida

Perhaps an individual lives in Massachusetts but owns a condo in Florida. In that case, the primary probate process will take place in Massachusetts. However, the Massachusetts probate courts will not have authority over the condo in Florida.

In this case, the decedent’s estate administrator will need to initiate a second probate process. Other types of property may also be part of the ancillary probate, including boats or cars with Florida titles.

The Ancillary Probate Process

Florida law governs ancillary probate under Florida Statute 734.102. This process applies when a non-resident of the state dies and leaves behind:

Property
Other assets
Liens on any property in Florida
Debts that a Florida resident owes them

A personal representative for the property located in Florida will need an ancillary letter regarding the estate. In many cases, the estate planning documents will not list a representative for the Florida property. When this happens, an out-of-state individual named as a representative will have to administer the Florida probate. The representative will have to comply with and qualify under Florida law for this process.

If there are no terms regarding an estate representative in the decedent’s estate plan, the court will name a personal representative pursuant to Chapter 733 of the Florida Probate Code. This scenario would occur if the decedent never drafted a will.

Formal and Summary Administration

There are two main probate administration processes. A Formal Administration usually applies if the decedent has been dead for two years or less and when the value of the probate estate exceeds $75,000. The steps involved will include the court appointing a representative, notification to creditors, and publication of the probate in the newspaper.

The other probate process is Summary Administration. This proceeding is less involved and apply in cases where the value of the estate is under $75,000. The beneficiaries of the estate will need to agree to the summary probate. If those beneficiaries do not agree, the estate will go through formal administration. Also, if the decedent owed debts, or if the administrator cannot identify all of the assets in Florida, the probate process will need to be a more involved formal administration.

Summary administration requires that the representative share an authenticated copy of the probate administration from the decedent’s home state. That documentation should include any wills, trusts, beneficiaries, and other information regarding the property located in Florida.

In cases where a creditor notifies the estate regarding a claim, the estate will go through a traditional ancillary probate process to resolve those debts. Frequently, no creditors will appear, and the administrator will be able to distribute the property to the named beneficiaries.

Creditors have only two years to file claims against a deceased individual’s estate under the applicable statute of limitations. After the two-year period, a larger estate, such as those worth more than $75,000, can go through a summary administration process. Because summary administration is faster and simpler than formal administration, it is also less expensive. When possible, you should opt for summary administration rather than formal administration because it is an excellent way to save time and resources.

Can You Avoid Ancillary Probate?

Ancillary probate can increase the costs of probate administration significantly. Not only will the process increase court-related costs, attorney fees, and other expenses, but it will also draw out the probate and require additional time and energy to complete. There are ways that you can prevent the need for ancillary probate.

Creating a detailed estate plan can avoid ancillary probate through the use of a trust. If you wish to create a living trust, you can title your out-of-state property under the name of the trust. These assets will go straight to beneficiaries rather than through the probate process. The trust can hold any property, in your state or out of state, and all of it will bypass probate, therefore, saving your beneficiaries time, stress, and money.

Drafting a trust and other estate planning documents will help your loved ones manage any estate property and save assets at the time of your death.

Speak to an Experienced Ancillary Probate Administration Lawyer

Ancillary probate is a complicated process. An attorney can help you navigate the probate administration process in Florida. Contact the experienced ancillary probate lawyers at Loshak Law PLLC today to discuss your case by calling (954) 334-1122.

There’s no doubt about it, along with the slew of negotiations and shopping around, paperwork is one of the most daunting aspects of any real estate transaction. That’s why many individuals & companies throughout South Florida seek help from our experienced business and real estate lawyers.

That may also explain why The Florida Bar and Florida Association of Realtors combined their resources to create a universal form agreement for use in real estate deals throughout the state. As a standard document, it is relatively simple document that includes many of the same provisions usually featured in other customary real estate form agreements. Because it is available to the general public as well as relevant professionals, anyone involved in a Florida real estate transaction has access to a reliable and legally binding agreement.

Here’s what you should know about this type of contract.

Key provisions in a generic FAR/BAR contract

The following provisions are included in a generic FAR/BAR contract:

Sales price
Closing date
Inspection
Financial
Title

Within this context it is important to discuss some of these provisions in greater context. For example, the inspection provision in this type of FAR/BAR contract gives the buyer 15 days after the effective date of the contract, or five days before closing, to complete relevant inspections and inform the seller, unless otherwise noted. The seller then has 10 days from notification to either obtain repair estimates for the buyer, or arrange for another inspection in the event of a dispute over the initial findings. If the second inspection fails to resolve the dispute, the parties must split the cost of a third and final inspection, and the outcome will be legally binding on everyone involved.

Another provision frequently used in a generic FAR/BAR contract pertains to disclosure. This is detailed in Paragraph 10 of the contract and states, “Seller knows of no facts materially affecting the value of the Real Property which are not readily observable and which have not been disclosed to Buyer.” This stipulation is also known statewide as the Johnson v. Davis duty to disclose, and is named for the Florida Supreme Court case that imposed it.

Finally, this type of form agreement also includes a permitting provision. This provision is detailed in Paragraph 12 of the contract and allows the buyer to advise the seller about any permit issues. It also mandates that the seller resolve any open or expired permits, and secures permits for any unpermitted improvements up to a specified monetary amount.

Important provisions in a FAR/BAR ‘As-Is’ contract

In lieu of the standard or generic FAR/BAR contracts discussed above, a variation called a FAR/BAR “As Is” contract may be used in Florida real estate transactions. Here are some important features of the latter:

The inspection provision – Under the inspection provision of a FAR BAR “As Is” contract, the seller has no legal obligation to provide the buyer with credit or otherwise cover the cost for addressing any deficiencies discovered during inspection. If a dispute over this issue remains unresolved, the buyer is allowed to cancel the contract prior to the expiration of the inspection period and get his or her deposit back.
Seller disclosure – Under this provision in a FAR/BAR “As Is” contract, there is additional language stating that other than the legal obligation to disclose detailed above, the seller “extends and intends no warranty and makes no representation of any type, either express or implied, as to the physical condition or history of the Property.”
Permitting issues – This provision in a FAR/BAR “As Is” contract frees the seller from any legal obligation to incur any costs for addressing outstanding permit issues. However, it also stipulates that the seller must still help the buyer resolve the relevant matter(s) in other ways.
Waiver – Under Paragraph18 of the “As Is” Contract the buyer waives his or her right to take legal action against the seller and any Realtor involved in the transaction for any defect or damage that existed at closing but remained unknown to the buyer until a later date. In contrast, there is no such language in a generic FAR/BAR contract.

Use of the FAR/BAR contract by the general public

If you are buying or selling a home and want to handle the transaction on your own, you can access both types of FAR/BAR contract online, and use either the digital version or hard copy. However, it is important that you are using the most recent version. You can make sure you are using the correct edition by checking with the Florida Bar or Florida Association of Realtors.

Because real estate transactions tend to be complicated and mistakes can be costly, it is important to get proper legal advice before using and signing any real estate agreement. At Loshak Law PLLC, we have the experience and qualifications necessary to help with all of your residential and commercial real estate needs. Contact us today.

It’s every Florida homeowner’s nightmare. You’ve scrimped, saved, and sacrificed in order to buy your dream home. Or perhaps you inherited a house and land that has belonged to your family for generations. In either case, you’ve lived there for years, but you’ve just learned that the government wants to “take” your property in order to build something else. Now you’re wondering if “they” can really do that.

In most cases, the answer is: Yes, they can. In Florida, as in other states, the federal, state, or even local government can take private property through a legal process called Eminent Domain. This right is not limitless, however, since the government can only do so for certain purposes, in accordance with the law.

Here’s What You Need to Know

Provisions pertaining to eminent domain can be found in Article X, Section 6 of the Florida Constitution. Article X, Section 6(a) specifically states, “No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.”

Although the definition of a “public purpose” has been widely interpreted by Florida courts, the constitutional provision and applicable state laws nevertheless ensure that you are reimbursed, or that money is set aside for your reimbursement, if your property is taken through eminent domain.

The state laws regarding “pre-suit negotiations,” including compensation, can be found in Title VI, Chapter 73 of the Florida Statutes. In accordance with these laws, the government agency or “condemning authority” seizing your property through eminent domain must give you a “written offer” for your property. It must also give you a copy of the appraisal that serves as the basis for the offer, if you request it. Finally, the condemning authority “must attempt to reach an agreement regarding the amount of compensation to be paid for the parcel” before taking further legal action.

If you and the condemning authority are unable to reach an agreement through these negotiations and/or mediation and the case goes to trial, a jury will ultimately determine how much you will be paid based on the assessment of your property or based on damages to the remaining property, if only a portion of it will be taken. Confiscation of land through eminent domain is not limited to residential parcels – it can also affect businesses and mobile home parks.

To learn more about how eminent domain may affect you, and your legal options if it does, contact the law firm Loshak Law PLLC today at (954)334-1122 or email us at: info@loshakleach.com

Click here for a helpful Overview of land use and zoning in Florida.

Category: Real Estate