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Exclusive Use – Restrictions In Shopping Center

admin — Wed, 01 Feb 2012 22:19:37 +0000

To protect against competition within a shopping center, a tenant will often seek an “exclusive” right of use so that it will not have direct competition in the same shopping center where the tenant is opening its business.

The landlord will resist, or at least try to make the exclusive as narrow as possible, so as to avoid limitations on the landlord’s ability to lease space to other tenants.

An exclusive right of use should be granted only for the tenant’s “primary” use and not for a use that is merely incidental to its business. The terms “primary use” and “incidental use” must be clearly understood by both the landlord and tenant and the applicable language in the lease must be clear and understandable.

There are a number of additional considerations that should also be addressed in the applicable lease language, all of which go to the reach, application, and duration of the exclusive, as well as the remedies for breach by either the landlord or tenant. Careful drafting of these provisions is absolutely essential in order to avoid disputes later.

Just how broad the exclusive will be is a function of the bargaining power between the landlord and tenant. Usually, the anchor tenant and other major tenants will insist on broad exclusives and the landlord will find it necessary to grant them their desired exclusives to secure them as tenants in the shopping center. Smaller tenants may or may not be able to obtain the protection of an exclusive, depending on the landlord’s then current levels of occupancy and recent leasing history.

Whether an exclusive use will be granted, and if so, the terms of the exclusive, is always a critical issue of any lease negotiations. It behooves both landlord and tenant to fully understand the implications of exclusive uses and the language providing for same.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information. You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

Can Facebook Gripes About Work Get You Fired?

admin — Thu, 19 Jan 2012 16:11:54 +0000

The National Labor Relations Board (NLRB) has reported that certain complaints about your work environment that are posted on social media sires such as Facebook and Twitter may be considered “protected concerted activity” which an employer cannot legally fire or discipline an employee for engaging in.

The recent report from the NLRB discusses the outcome of investigations into 14 cases involving social media by the agency’s Division of Advice. In four cases in the report, the NLRB found the workers were protected under Section 7 of the National Labor Relations Act because they were discussing terms and conditions of employment with fellow employees.

In one case the NLRB sided with a luxury car salesman fired for posting photos of a sales event in which hot dogs were served, cheap food he deemed to be conveying the wrong message to potential clients. His introduction to the photos remarked that he was happy to see that the employer had gone all out for the party. The NLRB said the salesman was vocalizing the concerns of his co-workers, whose salaries were based entirely on commissions.

In another case, the NLRB sided with two restaurant employees fired after reacting online to a critical Facebook post by a former employee. The ex-worker criticized her one-time employer for failing to withhold enough money for state taxes. One fired employee pressed “like.” The other said she also owed money and used profane language to describe the employer. The report noted that the issue had previously been raised with management, and the online discussion concerned future group activity by the employees.

But the NLRB sided with a retail store that disciplined an employee who complained on Facebook about “tyranny” at work and criticized an assistant manager with a denigrating term. The posts were about an individual gripe rather than concerted action, the NLRB said.

Section 7 covers most private sector employees and applies even if the workplace is not unionized. The decisions seem to turn on whether the “complaining” involves or discusses an employment issue affecting a group of employees versus one individual employee. However, it is important to note that the NLRB’s position on social media has not been tested in the courts, and the legal issues are still developing.

View FULL Report Here

Is Mediation Worth Your Time and Money?

admin — Wed, 11 Jan 2012 22:59:29 +0000

Throughout history, alternative dispute resolution or “mediation” has been the cornerstone of peace making dating back thousands of years. In Florida, mediation was incorporated into family law in the 1980’s. Today, nearly all litigants with civil law suits will mediate their case, usually under court order, in an effort to resolve their differences. Generally, mediation is conducted after the discovery phase or most of it has been concluded and both parties and their attorneys are sufficiently educated about the dispute to be in a position to negotiate a settlement agreement.

Unfortunately, because much of civil litigation and legal billing practice has become standardized, many matters are “litigated to mediation”, meaning instead of a specific strategy for a lawsuit, whether you are a plaintiff or defendant, the goal is to go to mediation. This is not always the best and most efficient use of a litigant’s resources. In some instances, a motion to dispense with or bypass mediation and move directly to trial may, although unusual, be a better strategy. In other instances, it may be better to press for a meeting of attorneys to discuss settlement as soon as is practical such as before or during the discovery phase of litigation.

Mediation has become its own institution and mediators can either be true assets to the resolution process or, unfortunately, independent billing interests with less interest in whether a case resolves. A mediation should be more than a mere formal exercise to certify to the court that a half hearted attempt was made to settle a matter. Mediation should be a high stakes and, when appropriate, formal affair for both parties. This means both sides should have some degree of nausea at the thought of impasse or what happens next if a settlement agreement is not reached in mediation. Several ingredients serve to ensure mediation is taken seriously and include the expertise and work ethic of the mediator. This point cannot be overemphasized. If the mediator is getting educated about the law related to your case on the job, meaning during the mediation, or shows little interest in exploring creative ideas for settlement, it is going to directly impact the outcome of the mediation. Other ingredients to be considered are timing of mediation and the thorough consideration of what each side wants or needs and what can be offered for resolution.

If you are involved in a lawsuit, it is important to discuss the possibility of mediation with your attorney. You should ask whether mediation will be beneficial. In some instances, mediation may be a viable alternative to a lawsuit. You should also ask about the timing of mediation and why your attorney is recommending a particular mediator. Without strategic questions and quality planning at the outset of a civil suit, the litigant becomes a victim of the process and both time and money can be wasted.

The Florida Supreme Court has recently adopted amendments to Florida Rule of Civil Procedure 1.720, which governs mediation procedures effective January 1, 2012. The amendments deal with certifying who will appear at mediation and provide sanctions for failure to appear. The goal of these new amendments is to strengthen the likelihood of success of alternative dispute resolution in an effort to provide some relief to the jammed trial dockets of our underfunded courts.

If you have a legal matter and believe mediation may be beneficial to you, call Bogin, Munns and Munns. For over 35 years, Bogin, Munns and Munns has been serving the central Florida community in litigation and mediation. With 30 attorneys and 10 offices, we are a full service law firm ready to meet the needs of our clients.

Alimony Relief

admin — Fri, 30 Dec 2011 14:06:55 +0000

Florida law provides for a reduction or termination of alimony if the court finds a supportive relationship has existed between the recipient of alimony and a person with whom the recipient resides. While common law marriage has not been valid in Florida in over forty years and de facto marriages are also not recognized, the legislature has determined that one under an alimony obligation (the obligor) can obtain relief when the alimony recipient (the obligee) has established a supportive relationship with another.

There are many factors for the court to consider whether a true supportive relationship exists to warrant a reduction or termination of the alimony provided at the time of the final judgment of dissolution of marriage. These include, but are not limited to: (1) The period of time that the obligee has resided with the other person in a permanent place of abode; (2)The pooling of income or assets or other proof of financial interdependence between the obligee and the other person; (3) The extent to which the obligee and the other person has supported the other, including the children of one another; and (4) Whether the obligee and the other have jointly contributed to the purchase of real or personal property or jointly incurred debts.

The procedure for a reduction or termination of alimony begins with a petition filed in the court which initially granted the alimony. The burden of proof is with the obligor to establish that the former spouse has established a supportive relationship. The rationale of this law is recognition that the obligee has established a relationship that has taken the financial place of a marriage and necessarily decreases or eliminates the need for financial support from the obligor.

In addition to the factual complexity that these cases bring there are also legal issues that need to be explored. For example, what happens if the court grants the reduction or termination when the supportive relationship ends; can the court reinstate the alimony? What if the alimony was for rehabilitative purposes; does it matter if there is a subsequent supportive relationship? If you face any issues with alimony or any other family law matter, please contact Bogin, Munns & Munns, P.A.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information. You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

Can I be sued because of something my child did?

admin — Fri, 09 Dec 2011 19:37:47 +0000

As is the case with most legal questions, the answer depends on the facts. At common law (the law which derives from old English court decisions based on societal customs), a parent was not liable for the wrongful acts of their children. Because children do not usually have any significant financial resources of their own, a person harmed by the child’s negligent or willful conduct was simply out of luck.

To soften this harsh result, over the years states have passed laws that hold parents liable for the wrongful acts of their minor children under certain circumstances. In Florida, the legislature has passed two statutes that specifically address parental liability. The first is Florida Statute Section 322.09. For those of you that have signed an application for your child to obtain a driver’s license, you are already subject to this statute, which states, in relevant part:

Any negligence or willful misconduct of a minor under the age of 18 years when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor… [and such] person shall be…liable for any damages caused by such negligence or willful misconduct.

The other statute is Florida Statute Section 741.24 which covers liability for a child who vandalizes or steals property, and states that an affected person:

…[S]hall be entitled to recover damages…from the parents of any minor under the age of 18 years, living with the parents, who maliciously or willfully destroys or steals property…

This statute often is used when a student vandalizes school or other government property.

Additionally, courts in Florida have held parents liable in situations where they had a legal duty to supervise or control the conduct of their child. This is a tricky analysis which has been the subject of much confusion in the courts. The controlling case in Florida is a 1955 decision of the Florida Supreme Court. In this case the Court decided that a parent can be held liable for their failure to control a child only when that child commits an act that the parent knew, or should have known, the child was likely to commit. In other words, under Florida law, the parent must have knowledge of a past course of conduct that would make it reasonably foreseeable that the child would harm another unless the parent took active measures to control the child’s conduct. This standard is frequently used when attempting to hold the parents of a “bully” liable for harm he or she causes to another. If the parents had knowledge of these particular kinds of acts and did nothing to prevent the situation from occurring again, they can be held liable.

The bottom line is that you as a parent need to understand that in certain situations you can be sued for your child’s wrongful acts. The law, as it should, does not allow you to simply turn a blind eye to bad behavior that harms others.

Age Discrimination

admin — Wed, 19 Oct 2011 21:57:51 +0000

Central Florida has a large population of older workers. Therefore, it is not unusual for age discrimination claims to arise in the workplace. Age discrimination involves treating someone (an applicant or employee) less favorably because of his age. The federal Age Discrimination in Employment Act (ADEA) only forbids age discrimination against people who are age 40 or older. The ADEA does not protect workers under the age of 40. However, the State of Florida’s civil rights statute (the Florida Civil Rights Act of 1992, Florida Statutes, Chapter 760) protects all workers and applicants from age discrimination regardless of their age—whether they are over 40 years of age or under 40 years of age. Claims of age discrimination by younger workers or applicants are rare. But, they do occur.

Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40. The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

It is unlawful to harass a person because of his or her age. Harassment can include, for example, offensive remarks about a person’s age. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). Be sure to document these events.

The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. An employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a reasonable factor other than age.

If you believe that you are being discriminated against because you are older or younger, then contact the law firm of Bogin, Munns & Munns, P.A. to talk to one of its employment attorneys regarding your possible claim for age discrimination.

– Dan Perez is an Employment & Labor Law Attorney with Bogin, Munns, & Munns, P.A., a full service commercial law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Perez welcomes questions and comments regarding the above and can be reached at dperez@boginmunns.com.

What happens when the pension is changed without adequate notice or the notice is not sufficient or misleading?

admin — Wed, 14 Sep 2011 18:14:37 +0000

There are recent developments that provide relief to participants and beneficiaries of pension plans when the pension benefit is changed. The law that governs pensions provided through non-governmental employers is The Employee Retirement Income Security Act (ERISA). The law had been
unsettled as to the timing and content required, and what remedy was available if there was a violation of the law. Changes by statute and a recent ruling by
the U.S. Supreme Court have clarified this important issue.

When a significant reduction in the rate of future benefit accrual is to occur by plan amendment a written notice is to be provided in a manner calculated to be understood by the average plan participant. The notice is to be provided within a reasonable time before the effective date of the amendment. In the event of an intentional failure to give timely notice and sufficient information, or a failure to provide most of the information to most of the individuals entitled to receive the amendment, or other egregious failures by the plan as to notice, relief will be provided by the courts. This relief is in the form of providing benefits calculated as the greater of, (1) the benefits one would have been entitled without regard to the amendment, or (2) the benefits under the plan with regard to the amendment. In other words, if the pre-amendment benefit is better the beneficiary could obtain those benefits. In essence, the amendment would not be effective if the timing and content are not in compliance with the law.

You may think that this has been or should have been the law all along but the law had been unclear and court rulings had lead to harsh results in the past. For example, in one case the employee retired effective the first of the month after he submitted his resignation. The company announced on the first of the month (the employee’s retirement day) they had amended the plan a few weeks earlier but the amendment was effective immediately. Now the retiree would receive substantially less than had his retirement date been one day earlier. His claim was dismissed since the law at the time did not require pre-notice of the effective date but only reasonable notice after the amendment decision was made.

The recent Supreme Court ruling provides additional remedies in the event of a misleading plan amendment. Those remedies include the power to reform the pension plan to eliminate false or misleading information, and compensation to those beneficiaries or participants who were caused harm as a result of the false or misleading information. The Court went so far as to state that there may be circumstances where one would be entitled to relief if they can show harm and causation even without showing reliance by the reading of the document. The Court doubted Congress ever intended to bar relief when a pension plan is providing false or misleading information when the tainted information is being passed around though informal workplace discussions.

– Edward Gay, Esq., is of counsel with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. He welcomes questions and comments regarding the above and can be reached at egay@boginmunns.com

Second Wife Loses Homestead Protection Because She Bought Homestead with Proceeds from Property Husband Placed in Trust for Children Prior to His First Wife Dying

admin — Fri, 12 Aug 2011 20:05:48 +0000

The homestead protection that homeowners have in the state of Florida helps prevent Floridians from losing their homes due to debts owed to creditors. However, Florida law does allow equitable liens to be imposed on homestead property, particularly in cases of fraud. In the recent case of Hirchert Family Trust v. Hirchert, 36 Fla. L. Weekly D1290 (Fla. 4th DCA 2011), the Florida Appeals Court found that the Husband violated his fiduciary duties as Trustee, so that the beneficiaries of the Trust were entitled to an equitable lien against his 2^nd wife’s homestead property.

In that case, the Husband and his first wife lived in California. They created two trusts which provided that upon the death of the first spouse, all their assets, including their marital home in California, would be divided into a Survivor’s Trust for the benefit of the 2^nd spouse to die and a Residuary Trust for their children. The first wife died and pursuant to the trusts, the marital home was divided between the two trusts with 75 percent placed in the Residuary Trust for the children and the remaining 25 percent was placed in the Survivor Trust.

The Husband was Trustee of both trusts, and the Residuary Trust only permitted him to access the earnings of the Residuary Trust, but not the assets held in the trust. He married a second wife and signed a deed transferring the title of the marital home from the Residuary Trust to himself, which violated the terms of the trust. This transfer was a breach of his fiduciary duty as Trustee. Later, he sold the home and used the proceeds to purchase a new home with the second wife. They subsequently sold that property and bought another one in California as joint tenants. The husband died, and his second wife sold their home and used the proceeds to purchase a home in Florida.

The successor trustee of the residuary trust subsequently filed suit against the second wife to require her to convey to the Residuary Trust 75 percent of the proceeds that the Husband obtained from the sale of the original home. The court found that the Husband had breached his fiduciary duty as Trustee by conveying the title of the original home from the Residuary Trust to himself and held that 75 percent of the proceeds were traceable to the second wife’s current Florida homestead property.

The Florida Appeals Court held that the Husband’s breach of his fiduciary duty was “constructive fraud” and thus may form the basis to apply the equitable lien exception to the homestead protection rules. Accordingly, the court held that the second wife’s homestead property was subject to an equitable lien for 75 percent of the proceeds that the Husband had obtained from the sale of the original home.

If you need assistance with real estate, probate or trust litigation, you can call the law firm of Bogin, Munns & Munns for a consultation at (407) 578-1334.

– Zana Dupee, Esq., is an experienced attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mrs. Dupee works out of the Gainesville office of the firm and welcomes questions and comments regarding the above and can be reached at zdupee@boginmunns.com

Registering Your Mark on the Supplemental Register

admin — Thu, 04 Aug 2011 06:00:19 +0000

The Supplemental Register is the United States Patent and Trademark Office’s (“USPTO”) secondary register of trademarks. This secondary register permits the registration of trademarks that do not otherwise qualify for registration on the primary register of trademarks called the Principal Register. The only requirement for registration on the Supplemental Register is that a mark is capable of distinguishing goods or services.

Many of our clients have applied for registration of their trademark on the Principal Register only to be denied such registration by the examining attorney from the USPTO as “merely descriptive”. Except in certain circumstances, a trademark cannot be registered on the Principal Register if the mark’s name merely describes the goods and/or services it identifies to the consuming public.

An alternative option for clients is to register this mark on the Supplemental Register. The benefits of registering the mark on the Supplemental Register are:

It permits the applicant’s non-distinctive mark to acquire “secondary meaning” or “acquired distinctiveness”, which means that the mark becomes known to consumers as a designation of source for the applicant’s particular goods or services due to the mark’s long-term and extensive use.
After five years on the Supplemental Register, the mark may qualify for the Principal Register due to it having acquired distinctiveness. The applicant may then file a new application for registration on Principal Register.
The owner may use the registered trademark ® symbol, sue in federal court, and take advantage of certain international treaties.
The owner may also block subsequent applications for confusingly similar marks for related goods or services.

Registration on the Supplemental Register, however, does not provide the following benefits a mark obtains when registered on the Principal Register:

Does not afford the owner the exclusive right to use the mark in commerce in connection with its identified goods or services.
It does not serve as prima facie evidence of the validity of the registered mark or of the trademark registrant’s ownership of the mark.
It may be an admission that the mark is not inherently distinctive.
It will not stop importation of counterfeit products.
Supplemental registration cannot become incontestable.
A trademark must actually be used in commerce at the time the applicant seeks registration on the Supplemental Register as opposed to “intent to use” applications permitted on the Principal Register.

It is imperative that person or entity seeking to register its mark with the USPTO consult a competent trademark attorney to determine their legal options with said registration.

– Henry M. Cooper, Esq., is a shareholder and handles the intellectual property practice of Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. He welcomes questions and comments regarding the above and can be reached at hcooper@boginmunns.com.

Residential Tenant Rights in Florida – Security Deposit

admin — Tue, 02 Aug 2011 17:46:57 +0000

It is recommended that you sign a written lease whenever you rent property so that you have a record of the terms which have been agreed upon. The written lease should include specific terms as to the amount of rent, the length of the lease term, the amount of the security deposit, and the amount of notice which must be given if you want to end the lease early, among other things. These lease terms should be reviewed carefully so that you understand your obligations and rights.

In Florida, after you move out, a residential landlord has 15 days in which to return your full security deposit (if any) or has 30 days in which to send you written notice that some or all of the security deposit will be retained for damage beyond normal wear and tear. Upon receipt of the list of itemized deductions, the tenant has 15 days to send a written notice to the landlord that there is a disagreement about the amount being withheld. If the parties cannot settle this dispute on their own, the tenant can file a complaint with the Small Claims Court to resolve the matter.

The Orlando real estate attorneys of Bogin, Munns & Munns, P.A. can help you review and understand your lease before you sign it as well as to help you understand your rights if the landlord does not comply with its obligations.

Finding and Understanding Information

admin — Fri, 15 Jul 2011 13:00:33 +0000

With today’s technology, it can be easy for most anyone to find a lot of the information that you need without the assistance of an expert. However, you may need an expert to determine what information you actually do need and then to explain to you the information which you have found.

For example, before buying a piece of real property, it would be important to know if there are any liens on the property, who owns the actual title to the property, and if there are any easements on the property which could decrease its value. A real estate attorney handles these tasks on a daily basis and would be an invaluable resource for you.

Or, if you are buying the assets of a company, it would be important to know if the company has used those assets as collateral on a loan. If they did and then defaulted on the loan, the lender may be able to repossess those purchased assets from you even after the purchase leaving you to pursue the financially-troubled seller for a refund of your money. Business law attorneys conduct such lien and judgment searches and are well aware of what to be looking for before proceeding with a transaction.

Before deciding to spend money to sue someone, it may be worth conducting an asset search to determine if the person to be sued would be able to pay any money on a judgment which you might win. Wining a lawsuit is wonderful, but if it only results in a hollow victory and your attorney fees, you probably should forego the trouble of the lawsuit.

Each of the Orlando attorneys at Bogin, Munns & Munns, P.A. are proficient in the use of technology needed to obtain the information you need to make the legal decisions you face.

The Important Balance of the Burdens of Proof in a Just System

admin — Wed, 13 Jul 2011 13:00:52 +0000

The shock that many in the community are expressing to the not-guilty verdict handed down by the jury in the recent high-profile criminal trial in Orlando illustrates a point that I try to make to all of my clients – predicting the outcome of any trial with any certainty is impossible. Litigants – and in some cases, the members of the public – at times become so convinced of the “just” outcome of a case that they lose sight of the balance of the judicial system and the burdens of proof carried by the parties.

Our judicial system, rightly, requires the proponent of the claim to prove that claim. In the civil context, the plaintiff typically carries the burden to prove the elements of his claim. The burdens of proof in a civil case are lesser than that of a criminal case. In a civil case, usually a plaintiff must prove his or her case by a preponderance of the evidence – in other words, that something is more likely than not to have occurred. Less commonly, some civil claims require proof by clear and convincing evidence, a higher standard of persuasion than preponderance of the evidence, but not quite as high as the criminal burden of proof.

In a criminal case, the government – either the State of Florida for a state-charged crime or the United States for a federally-charged crime – must prove the elements of the crime to establish the guilt of the defendant beyond a reasonable doubt. This is the highest standard.

The requirement that the proponent of the claim or charge carries the burden of proof is the correct balance in our judicial system, and the alternative would be unjust. In the criminal context, the alternative would be that the government could charge a person with a crime without sufficient cause, have guilt presumed, and force the defendant to prove his or her innocence. In the civil context, the alternative would be that a plaintiff could sue for money or other civil relief and tie up a defendant’s property, money or credit without having first proved entitlement to any damages at all. The individual’s rights that could be infringed upon in such an abusive system are limitless. Unfortunately, this happens in other societies and is condemned by those with a balanced judicial system like ours.

Because of the balance imposed by the respective burdens of proof, it is impossible to predict with absolute certainty what a jury or judge will decide in any case. What may seem to be a very persuasive fact or argument to a litigant may not been deemed to be persuasive by the trier of fact. Evidence or testimony by a witness, which may seem to be very credible to the proponent of that evidence, may be looked at with circumspection by the judge or jury. An argument urged by one Orlando attorney that would seem infallible may be shown to be specious by the other attorney’s more persuasive argument.

The verdict in the recent high-profile case here in Orlando, wherein many members of the public (stoked by the media fanfare) were convinced in the “just” outcome, which outcome was rejected by a jury, demonstrates that it is impossible to predict the outcome of any matter.

A lesson we all should learn is that whenever a case is taken to trial, there is a risk that the judge or the jury will just not see the case through your eyes, no matter how convinced you are as to the ‘justness’ of your position. If you are a litigant, listen to your Orlando lawyer and respect his or her advice. If you are a member of the public, be cautious in substituting your judgment for the decisions reached by the trier of fact. But in all cases, respect the balance of the judicial system.

– Nancy E. Brandt, Esq., is a shareholder with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. She welcomes questions and comments regarding the above and can be reached at nancyb@boginmunns.com.

Guardianship Minors

admin — Thu, 07 Jul 2011 18:59:58 +0000

In Florida, a child’s parents are the child’s natural guardians and may act on behalf of the child in most instances.

However, if the parents become incapacitated or die and a child receives the proceeds of a lawsuit, an insurance policy or an inheritance in excess of $15,000, the Court must appoint a guardian for the child, which may or may not be the child’s parents.

Parents may anticipate who they would like to serve as the guardian of their child and prepare a Declaration of Guardianship over the person and/or property of the child if both parents were to die or become incapacitated.

A designation of a chosen guardian (or trustee) may also be made in a Last Will and Testament in which the minor child is a named beneficiary.

If no nominations are made, the Court will determine who will serve as the child’s guardian.

The Orlando estate planning attorneys of Bogin, Munns & Munns, P.A. can assist you with obtaining a guardianship of a minor or to prepare nominations for such guardianships.

Guardianship Adult

admin — Thu, 07 Jul 2011 13:00:29 +0000

There are times when an adult may no longer be competent or able to take care of himself/herself physically or to make financial decisions on his/her own behalf. At such times, the court may appoint a guardian to exercise the legal rights of the incapacitated person, also known as “the ward.”

The process is begun by an adult filing with the Court a petition to determine another person’s incapacity – setting forth the factual basis for such allegations. The Court will then appoint a committee of 3 expert members to conduct a physical examination, a mental health examination, and a functional assessment of the potential ward and to report back to the Court. An Orlando attorney will be appointed for the potential ward and any challenges to a finding of incapacity will be heard and determined by the Court.

If the Court determines that the adult is partially or fully incapacitated, then the Court will appoint a guardian to oversee the person’s physical well-being and/or financial well-being. If at any time thereafter, the person recovers, the Court will have the Ward reexamined and potentially restore some or all of the ward’s rights.

Florida law requires the use of the least restrictive alternatives to protect an incapacitated person. If the incapacitated person had planned ahead and executed an advanced health directive and/or a durable power of attorney and/or a revocable living trust, he/she may not require a guardian as persons with the ability to look out for the health and finances of the incapacitated person have already been designated in those documents. The advantages of executing these documents before incapacity sets in are that the person chooses who they wish to perform these functions (rather than having a court select the guardian) and that the costs and Orlando attorney fees of estate planning documents are much lower than a contested guardianship proceeding.

The Orlando estate planning attorneys of Bogin, Munns & Munns, P.A. will be glad to assist you in obtaining a guardianship when needed and to fulfill the on-going obligations of the appointed guardian. We can also assist in setting up your estate plan so that you can control those persons who will have authority over you and your assets should you become incapacitated.

The “Direct Threat” Affirmative Defense To Disability Discrimination Lawsuits

admin — Thu, 26 May 2011 15:46:29 +0000

On occasion, an employer will not hire an applicant, will discharge an employee, or will otherwise discriminate against an individual because that individual has a medical condition which the employer believes may pose a threat of harm to himself/herself, coworkers, customers, or the public. Generally speaking, this is an admission that the employer took a discriminatory adverse employment action against that applicant or employee because of their disability or perceived disability. In order to avoid liability for disability discrimination under the American’s with Disabilities Act (”ADA”), the employer bears the burden of proving that the employee’s medical condition, in fact, posed a direct threat of imminent harm to himself/herself or others.

An employer’s subjective, unilateral, and uninformed belief that someone poses a direct threat of harm is not enough to prove this affirmative defense to a disability discrimination lawsuit. The Eleventh Circuit Court of Appeals explained that in order to prove the “direct threat” affirmative defense, the employer has to state more than a subjective, good faith belief that the person was a direct threat. Lowe v. Alabama Power Company, 244 F.3d 1305, 1308 (11^{th Cir. 2001).}

Lowe held the employer must proffer “particularized facts about the specific person’s condition to support its” direct threat defense. Id. “The key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.” Id. The direct threat defense cannot be based on a “cursory” medical exam and must be based “on particularized facts using the best available objective evidence.” Id.

If you believe that you were not hired, were discharged, or were otherwise discriminated against because your employer believed that your medical condition posed a direct threat of harm to yourself or others, then we encourage you to contact the Orlando attorneys Bogin, Munns & Munns, P.A. to review the matter. You could have a valid claim for disability discrimination under the ADA. This claim may be even stronger if the employer acted rashly and/or subjectively without an objective medical basis for concluding that your medical condition posed a direct threat of harm.

– Daniel Perez, Esq., is an attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Perez works out of the Melbourne office of the firm and welcomes questions and comments regarding the above and can be reached at dperez@boginmunns.com

Am I Entitled to Unemployment Benefits?

admin — Mon, 16 May 2011 20:54:38 +0000

Unfortunately, employment lawyers hear this question fairly often these days. Generally speaking, a person is entitled to unemployment benefits unless they are either voluntarily quit or are fired for misconduct. While this seems like a fairly simple standard, there are often disputed facts in these sort of matters and extenuating circumstances that can sometimes weigh on the analysis as well. It may be prudent to speak with a qualified attorney that regularly handles these sort of matters as there can be significant consequences for both the employer and the employee depending upon the outcome.

If a terminated employee requests unemployment benefits, the former employer may dispute the entitlement. If that occurs, then the state sets up a telephone hearing to take testimony from both sides as to the facts involved in the termination. Such a hearing may be anywhere from several minutes long to several hours long depending upon the number of potential witnesses and a number of other factors.

Ultimately, a decision will be rendered as to whether the employee is (or is not) entitled to benefits. If either the employee or the employer is unhappy with the initial decision, then they may choose to appeal and another hearing may take place. Obviously, the results of these phone hearings are quite important to both the employer and the employee. If an employee successfully obtains benefits, then the employer’s future unemployment tax rate may increase. As to the employee, an unfavorable decision not only may stop the receipt of benefits, but the employee may even have to repay the state for any prior benefits they have received.

As noted in this brief article, unemployment benefit questions are often more involved than they may initially appear for employers and employees. At Bogin, Munns, & Munns, P.A. we have several experienced employment attorneys that can offer advice and assistance at any stage of unemployment benefit proceedings. We have represented both employers and employees in such disputes and are familiar with both the legal standards and common issues that arise.

– Joseph Shoemaker is an attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Shoemaker welcomes questions and comments regarding the above and can be reached at jshoemaker@boginmunns.com.
NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information. You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

The Family Business

admin — Thu, 05 May 2011 13:00:51 +0000

You have worked hard to grow your family business from scratch to the success it is today – not only to be the source for your income but hopefully also to be a legacy for your children. You have taken the necessary steps to protect your business, such as, creating a corporation or an LLC, and/or investigating the various options for asset protection (as discussed in some of our other blog entries).

Have you covered all of your bases? Do you have a plan as to who will run the business if you are incapacitated for a short term or a long term? Who will run and own the business upon your death? Is it acceptable for the business to be sold and the proceeds distributed to your heirs or do you prefer that this family-owned business remain intact?

INCAPACITY

If you are the President of your company and anticipate that you will be unavailable to perform your role in the short term, you can sign the proper resolutions to document who has authority to act in your role for a specified period of time. However, if your unavailability is due to an unplanned incapacity, you will not have the luxury of waiting to sign the proper papers.

If you do not have other officers already authorized to perform the roles necessary in your absence, it may be advisable to put the proper resolutions in place which delegate roles and responsibilities when you are incapacitated or unavailable.

DEATH

If you own the company in your name alone, the shares of the corporation (or membership units of the Limited Liability Company), are subject to transfer through the probate of your Last Will and Testament or through intestacy. A division of ownership among multiple heirs may make the continuation of the business difficult if your heirs are not familiar with the business operations or have varying opinions for its future.

If certain heirs would better be able to manage the company in accordance with your wishes, it may be worth designating in your Will that those heirs are to receive the ownership interest in the company and the remaining heirs are to receive your other assets. Alternatively, a trust may be a viable option for maintaining the operation of the business if your heirs would not be an adequate substitute for you.

These are some of the many issues that you may want to consider when planning not only the operation of your company but also the planning of your estate.

The attorneys of Bogin, Munns & Munns, P.A. can assist you with such planning.

– John Wright is a corporate, probate and estate planning attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Wright welcomes questions and comments regarding the above and can be reached at jwright@boginmunns.com.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information. You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

Online Foreclosure Bidders Beware

admin — Tue, 03 May 2011 13:00:53 +0000

We recently read about an Orange County resident who bid on a property through Orange County’s new online foreclosure auction. He was stunned to find out after he was the successful bidder and tendered $20k that the property he had just purchased was still subject to a mortgage. Unfortunately, the foreclosure sale was for the HOA’s lien. This costly mistake could have been avoided by obtaining and reviewing a title search. We recommend you consult with an attorney about purchasing properties at a foreclosure sale. Otherwise, you could stumble into this pitfall, just one of many for the inexperienced foreclosure auction participant.

– Spencer R. Munns, Esq., is a shareholder with the law firm of Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. He welcomes questions and comments regarding the above and can be reached at smunns@boginmunns.com.

Platted and Vacated Streets

admin — Wed, 27 Apr 2011 13:00:45 +0000

When purchasing real estate, buyers occasionally encounter issues that arise from a purchase of land that includes vacated, platted streets. How can a buyer be sure that he has good title to the land within the vacated, platted roads that may be included in the parcels that he is purchasing?

Platted streets must be vacated by appropriate governmental action before title can be cleared. There are procedures required by the County for this process and, generally, it is accomplished by the entry of a recorded ordinance or resolution by the appropriate governing body releasing any public rights to the vacated area. The ordinance should specifically state that any interest of the public or government is vacated.

Private rights to the vacated streets must also be addressed. The question must be asked, “who now has title to the vacated street” – the entity that dedicated the street in the first place or the purchasers of lots abutting the street?

The primary guide for the answer to this is the intention of the entity who dedicated the street as reflected in the dedication language on the plat. Where there is no specific intention indicated i.e. the plat does not address who would be entitled to ownership of the property after vacation of the streets, the general rule is that the owners of the lots abutting the streets take title. If the plat indicates that there is an intention for the entity dedicating the property to take title, that person may claim ownership to the formerly platted roadway if the intention to take back the ownership of the platted property is also included in the deeds of conveyance to the lot owners at the time they purchased their lots.

Very seldom does the plat contain the intent of the entity dedicating the roadways to retain the reversionary rights to platted roadways, and even if it does, even more seldom do developers include reversionary language in their deeds used to convey out to the various lot owners.

As a general rule, therefore, when a platted roadway is vacated, the owners of the lots abutting an interior street take title to the center of the vacated street. Generally, for owners of lots abutting a perimeter street, the owner takes title to the entire width of the vacated street.

Buying property that includes a formerly platted street can be treacherous. It is important to dot the “i’s” and cross the “t’s” and make sure that it has been accomplished in the correct manner, otherwise when the buyer goes to sell or mortgage the property at a later time, there will be title problems that could delay or foil the sale or mortgage of the property.

– Rulon D. Munns, Esq., is a managing shareholder of Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. He welcomes questions and comments regarding the above and can be reached at rulon@boginmunns.com.

Child Support : The Percentage of Time Sharing Does Matter

admin — Mon, 18 Apr 2011 13:00:33 +0000

Child support is calculated by the Child Support Guidelines, which is Florida Statutes §61.30. The calculation of child support takes into account the relative income of the parties, the number of children, the amount of time each parent spends with the children, and health care and child care expenses. Certain allowable deductions are taken, and then the net incomes of both parents are added together and applied to the Child Support Guidelines. The Guidelines presumes that a particular amount will contribute to the support of the children based on the combined net income of the parents and the number of children. The amount of child support that must be paid is a percentage of this total amount, and each parent pays a percent according to his or her contribution to the combined net income. Credits are given for the costs of child care incurred due to employment, job search or education and for health insurance and non-covered medical, dental and prescription medication expenses.

A credit is also given if a parent spends a substantial amount of time with the children. Recent changes in the law have altered the definition of “substantial time” to include any time sharing that is at least 20% of the overnights during a year. This means that any time either parent spends at least 73 overnights with a child per year, that parent will receive a reduction in his or her child support obligation. For example, if a Father has the children every other weekend from Friday after school until Monday morning, returning them to the school, he will have 78 days per year, which now meets the requirement for “substantial time.” The Father would then be obligated to provide less support because he is presumed to be providing support to the children while they are in his care for this amount of time. The percentage required to establish a substantial amount of time has changed from 40% in 2010 to 20% in 2011. Thus, for purposes of calculating child support , the Percentage of Time Sharing Does Matter.

– Mary Hoftiezer, Esq., is an Orlando domestic law attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. She welcomes questions and comments regarding the above and can be reached at mhoftiezer@boginmunns.com

State Lawmakers Aim for Change and Job Creation

admin — Thu, 14 Apr 2011 13:00:44 +0000

This year’s session for the Florida legislature marks a turning point and a departure from business as usual in our Capitol. Faced with enormous financial limitations as well as a new Governor and many new legislators, change appears to be the theme. In Florida, the legislature faces one constitutional requirement during session and that is to balance the budget. However, momentum also exists for a myriad of changes in regulations for businesses as Florida’s state leadership is attempting to make Florida more inviting to prospective businesses and employers.

On a recent visit to Tallahassee with a local delegation of central Florida businesses, I was encouraged by the sense of optimism within the legislature. The Governor’s goal of increasing jobs within Florida is not only a possibility but an obtainable goal within the next two years.

Do you have a new business idea? Are you considering expanding your employee base to more than twenty employees? Are you considering a partnership or a franchise agreement? Are you attempting to navigate the regulatory rules with the Florida Department of Business and Professional Regulation? Maybe you are trying to determine if it is the right time to purchase property instead of lease it for your business. This year’s legislative session promises to conclude with new incentives for employers to build and expand their enterprises. You can track the progress of bills affecting your business at http://www.leg.state.fl.us or through the Florida Chamber of Commerce.

For over 30 years, Bogin, Munns and Munns, has been counseling businesses and corporations from formation to growth. We can assist you with forming your corporation and with understanding federal workplace regulations as your business expands.

- Jeremy Hill, Esq., is an attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Hill works out of the Daytona office of the firm and welcomes questions and comments regarding the above and can be reached at jhill@boginmunns.com

Small Claims Litigation

admin — Fri, 08 Apr 2011 13:00:01 +0000

In Florida, if you cannot resolve a dispute for property valued at or money in an amount of $5,000.00 or less, you may look to the Small Claims Court. The rules and procedures in the small claims court are simpler, speedier and more informal than the regular court process and may offer you the best way to recover your property or money.

Prior to filing a lawsuit, you should attempt to reach resolution through direct communication with the other party. If that does not provide you a satisfactory resolution, then you need to evaluate whether or not you would be successful if you take the matter to the Small Claims Court. In other words, do you have a valid legal claim and do you have sufficient proof to succeed in court?

Any person over 18 years of age or any business may file a small claims lawsuit. A person under 18 years of age may also file a lawsuit but only if it is filed by his/her parent or guardian.

The process is begun by filing a Statement of Claim with the local county court clerk and paying the required fee. There is a standard Statement of Claim form available through the Clerk’s office as well as online. It is important to pick the appropriate county in which you file your lawsuit or else the defendant could request the court move the trial to a more appropriate county.

After fling the Statement of Claim, the defendant must be notified of the lawsuit by serving him with the required paperwork either mailed by the Clerk or delivered personally by the Sherriff’s Office. Fees are required for each service and may be recoverable as part of your lawsuit.

The court will set a pretrial hearing at which time the court will accept the defendant’s defenses, if any. If the defendant has no valid defenses, the judge may enter a verdict at that time. If the defendant appears to have valid legal or factual defenses, the judge will schedule a trial. At trial, each party will present his/her/its evidence, including witnesses which have been subpoenaed to appear by each party. The judge will then make his/her ruling. This ruling is subject to appeal, which is subject to the more stringent and complicated civil procedure rules.

If you are successful in getting a judgment against the defendant, you will have to proceed to the collection of your judgment, a topic of a future blog.

While Florida allows you to retain and use a lawyer during a small claims court matter, many people do not do so because of the potential expense. If you win, those reasonable attorney’s fees will be recoverable but if you lose, it is money out of your pocket.

A good compromise may be to use an attorney on a limited basis – meet with an attorney to determine if you have a valid claim, prepare a demand letter to the defendant prior to filing the lawsuit, learn what your best evidence is and how to present it effectively at trial, anticipate the defendant’s claims and how to counter them, and more.

The lawyers of Bogin, Munns & Munns will be glad to meet with you to help prepare you for your small claims matter.

– John Wright is a corporate, probate and estate planning attorney with Bogin, Munns & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Wright welcomes questions and comments regarding the above and can be reached at jwright@boginmunns.com.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information. You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

Non Disclosure Agreements

admin — Thu, 07 Apr 2011 13:23:47 +0000

A Non-Disclosure Agreement or NDA is a contract in which one party agrees that it will disclosure information and/or documents which it considers valuable and confidential to another party so long as the receiving party agrees to maintain the confidentiality of the disclosed information and/or documents. NDAs can also be mutual when each party is both disclosing its confidential information and receiving the other party’s confidential information.

The confidential information could be anything which one party considers its secret, such as, a new invention, its financial information, a manufacturing process, its list of customers, a marketing plan, or a recipe. To be protectable, the information must not have been previously publicly disclosed or available from another source.

An NDA helps enable parties to conduct business without fear that another party will steal its secrets. For example, if you have a new invention and would like to discuss it with a manufacturer, you would want the manufacturer to sign your NDA first before disclosing the invention to them. The manufacturer would then be bound to limit its use of the information to the stated purpose, such as providing a cost estimate to you.

By signing an NDA, the parties enter into a confidential relationship with an obligation to maintain the secrecy of the information disclosed as well as to restrict the receiving party’s use of the disclosed information to only the purposes agreed upon and stated in the NDA, all for a limited period of time. If the receiving party breaches the NDA, the disclosing party would be able to request a court to issue an injunction to have the receiving party immediately cease its breaching conduct and to sue the receiving party for monetary damages which the disclosing party suffered.

The disclosing party will want the NDA to be carefully prepared so that all of the information trying to be protected is well defined and that the receiving party is restricted to the activities in which it will be able to use the disclosed information. The receiving party will want a well written NDA so that the disclosing party will not be able to later allege a breach for the receiving party’s actions on information the receiving party previously possessed or other similar exceptions.

The attorneys at Bogin, Munns & Munns, P.A. will be glad to assist you with the drafting or the review of a proposed NDA.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information. You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

TAGS: confidential, proprietary, secret, non disclosure, NDA, damages, breach, injunction

Helping a Widowed Parent

admin — Wed, 06 Apr 2011 13:00:11 +0000

It is never easy to discuss estate planning issues with one’s parents. Be assured it is probably not easy for them either. This becomes increasingly more difficult when a spouse has died.

However, being proactive, organized and prepared in this situation will greatly enhance your ability to assist the surviving parent. If possible, it is usually better if the parent continues to make the decisions regarding their life and planning and only relies on you for assistance (rather than your taking control). With that in mind:

Conduct an inventory of the surviving parent’s assets and debts. Locate and review the important documents related to them.
Verify that the surviving parent is knowledgeable about their bills and accounts, any arrangements for automatic deposits and withdrawals, and any email or other electronic passwords.
Determine if the survivor is entitled to any benefits – pension, social security, veteran, life insurance – and apply for benefits as appropriate.
If title to land, automobiles, investment accounts or other assets were held jointly by the spouses, work on changing the titles. Title can be held solely by the survivor or jointly with another person, or the asset may be capable of being designated as “payable on death.” Such changes should be made consistent with the wishes of the survivor’s Last Will and Testament.
If the survivor is elderly, determine if he/she is now capable of living on his/her own or if some type of assistance is needed (e.g., visiting nurse or assisted living). Be aware that this status may change with time and needs to be monitored. Assess the home conditions and make any improvements needed for better safety and accessibility. If the survivor is no longer capable of living on his/her own or making his/her own decisions, consider alternative living arrangements for them.
Update insurance policy beneficiaries, estate planning documents (i.e., Last Will and Testament, Living Will, Durable Power of Attorney) as needed.
If you do not live nearby, consider making arrangements with the survivor’s other relatives, neighbors and friends who do live nearby to visit and assist as needed.

Just as your parent may need assistance, so too may you. The lawyers of Bogin, Munns & Munns, P.A. have experience with such transitioning and can assist with any modifications needed for estate planning, any issues regarding benefits planning for the elderly (Medicare, Medicaid) and guardianship.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information. You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

TAGS: widow, elderly, estate planning, survivor, assisted living, Medicare, Medicaid, guardianship, benefits, pension, insurance, social security, living assistance, Last Will and Testament, Living Will, Durable Power of Attorney, title, payable on death

Introduction : The Commercial Real Estate Lease

admin — Mon, 04 Apr 2011 13:00:30 +0000

In today’s marketplace, a prospective commercial real estate tenant has numerous properties from which to choose and has a significant opportunity to negotiate the terms of a lease. The prospective tenant should not be deterred from negotiation because the landlord says that the proposed standard form lease is the same form everyone else signed. If the landlord is intractable from that position, the tenant will need to evaluate the proposed lease terms as is. But faced with the prospective of continued vacant space, the landlord may change his/her stance if his/her bluff is called.

How can a tenant decide what issues should be negotiated? This determination will vary from tenant to tenant and from lease to lease. A commercial lease can be a very complex document which can control the outcome of many planned and unplanned events. So before deciding on what “standard” terms need to be varied, the prospective tenant needs to thoroughly understand all of the proposed lease terms.

A tenant may expect the rent to be a simple statement in the lease. And that may be the case when the rent is a flat monthly payment. But, the rent could be variable – such as an amount due based on a percentage of the tenant’s sales. Or, it could be a combination of those two or other factors. There may be additional cost obligations to the tenant which can be classified as “additional rent.” These may be payments, among other things, for the upkeep of the common areas of the commercial building, for the fees to be paid to the management company, or for the cost of various landlord-supplied utilities. The lease may also include an escalation provision allowing for increases in the rent or the additional rent over time.

The prospective tenant should analyze each of these “rent” terms and the impact that each has on his/her/its economics for the proposed space. If the basic rent terms cannot be negotiated, the tenant may want to add restrictions as to the types of common area expenses to be covered or how frequently they will be incurred or escalated.

Typically, a lease will also include an allocation of responsibilities for maintenance and damage repairs. Significant items such as roofing, HVAC, and plumbing could be assigned to the tenant. If the landlord will not negotiate away from such assignment, a thorough inspection may be justified to determine the risks in each of these items.

While reputable landlords and tenants do not dispute every minor issue that occurs after the tenant occupies the premises, not all landlords and all tenants are reputable. A vague term is a great invitation for a future dispute. A vague term routinely used in a lease is the word “reasonable.” For example, a lease may state that “the tenant will pay tenant’s prorata share of the parking lot repaving done at reasonable intervals.” Since this could be a significant expense, it may be advantageous to the parties to define “reasonable” as “an event that occurs no more than once every X years.” The elimination or the restriction of a vague term may not be merited in every instance, but the tenant should evaluate the risks associated in each case before accepting it.

Other provisions may be important to some tenants and not to others. For example, parking and signage may be critical for a retail store but not so for a manufacturing location. Lease duration may be critical for a tenant which would incur significant costs in relocating. Build-out expenses or restrictions on interior alterations will vary in importance among potential tenants. In every case though, the prospective tenant needs to make a conscience decision on every term’s acceptability within the scope of the overall lease evaluation.

The attorneys of Bogin, Munn & Munns, P.A. have significant experience in drafting, analyzing, and negotiating commercial real estate leases for landlords and for tenants and welcome you to contact them.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information. You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

TAGS: commercial real estate lease, lease, negotiation, landlord, tenant, rent, additional rent, common area expense, escalation, maintenance, vague, build-out

Removal of the second mortgage from your home

admin — Fri, 01 Apr 2011 13:00:30 +0000

A Chapter 13 bankruptcy provides an opportunity to eliminate a second mortgage from the residence of the debtor filing for bankruptcy. What is known as a “stripoff” is allowed where the lien or mortgage is “wholly unsecured”.

The legal basis for this relief is found in 11 U.S.C. 1322(b)(2) which in essence provides that a Chapter 13 plan may modify the rights of holders of secured claims other than a claim secured only by a security interest in real property that is the debtor’s principal residence. The courts have consistently ruled that where a lien or mortgage is in reality unsecured there is no protection from a court ordered modification. Further, pursuant to Section 506 of the Bankruptcy Code a wholly unsecured creditor cannot make a lien claim, i.e. a wholly unsecured lien claim is void. Therefore, if the value of the residence is less than the amount owed to the first mortgage company the second mortgage company has no collateral to secure the debtors obligations. Under this scenario the second mortgage company is “wholly unsecured’, and the Chapter 13 debtor may submit a motion to the court seeking a “stripoff” of the second mortgage.

Under current real estate market conditions the second mortgage company rarely contest a motion to stripoff. The Debtor bears the burden of proof to show the sum owed to the first mortgage and the value of the residence. If there is a dispute over the value the debtor will need to obtain an appraisal and be prepared to pay the appraiser for court testimony. The sum owed and values are determined as of the date of the petition filing.

Once the second mortgage is stripped the amount owed is considered an unsecured claim like any other unsecured debt such as credit cards and medical bills. The debtor will pay to the court trustee a monthly amount which is determined by the debtor’s household disposable income as defined by the Bankruptcy Code. These monthly payments typically continue for 60 months. The total debt and the total amount of money paid to fund the plan determines the percentage or pro-rata share of payments to creditors through the plan. Therefore, the stripoff does not completely eliminate the debt. However, the mortgage is removed, which will prove beneficial upon any sale of the residence by the debtor in the future, and the second mortgage company will receive only their pro-rata share through the Chapter 13 plan.

Does a Bank have Continuous Coverage under a Mortgagee Title Policy after a Foreclosure?

admin — Fri, 18 Mar 2011 13:00:12 +0000

Many banks are foreclosing on homes or taking ownership of them by a deed in lieu of foreclosure. One question that has come up is whether the bank has continuous coverage under the Mortgagee Title Insurance Policy from when the mortgage was originated. This can be important if title problems are discovered after the bank has already taken title to the property.

Paragraph 2(a) of the 1992 ALTA mortgagee policy Conditions and Stipulations states in part:

2. CONTINUATION OF INSURANCE

(a) After Acquisition of Title. The coverage of this policy shall continue in force as of Date of Policy in favor of

(i) an insured who acquires all or any part of the estate or interest in the land by foreclosure, trustee’s sale, conveyance in lieu of foreclosure, or other legal matter which discharges the lien of the insured mortgage; (ii) a transferee of the estate or interest so acquired from an insured corporation, provided the transferee is the parent or wholly owned subsidiary of the insured corporation, and their corporate successors by operation of law and not by purchase …

The policy language above does tell us that the bank may continued to be insured. However, there are a few problems that arise:

One problem is when a bank has a 3rd party bid at the foreclosure sale. This often happens when the bank’s parent or subsidiary company bids at the sale without having an assignment of the mortgage. If this happens, the property has been acquired by a 3rd party, not the mortgage holder, and the title policy terminates. So, there is no continued title coverage!!

Another problem is the amount of damages that are available under a mortgagee title policy. The amount payable under a mortgagee policy is limited to the amount of indebtedness as compared to the value of the property. So, if the title defect does not diminish the property’s value below the amount of principal owed on the mortgage, then there is no payable insurance claim on a mortgagee policy. In contrast, an owner’s policy would pay for the decrease in the value of the property without regard to the balance owed on the mortgage. This makes a big difference in cases where the mortgage balance has been paid down or where the lender did not loan the full value of the property.

An additional problem that arises is the effective date of the policy. The effective date of the mortgagee policy is the date that the mortgage was originally recorded. So, any title defects that arose after that date will not be covered by the existing mortgagee policy.

For all these reasons, banks should consider purchasing an owner’s policy when they buy a property at a foreclosure sale rather than relying on continued coverage for title defects under the mortgagee policy.

If you are a lender in North or Central Florida that needs legal advice regarding real estate issues, please contact Bogin, Munns, & Munns, P.A. to schedule a consultation. The attorneys at Bogin, Munns & Munns, P.A. have significant experience in representing lenders who own properties with title defects, and we would be happy to assist your bank as well. Often, our fees for fixing title defects are paid from a title policy claim. Please call us at (352) 332-7688 in Gainesville and (407) 578-1334 in Orlando.

Basics of Asset Protection

admin — Wed, 16 Mar 2011 13:00:03 +0000

As you begin to accumulate wealth, you should consider various means to protect yourself from claims of creditors. There are a variety of ways to do so, but you must act in a timely manner. Once there is a foreseeable creditor claim against you or your assets, it may be too late to take any action to protect your assets.

How does a creditor claim arise?

You may become liable for a breach of contract or for a claim against a guaranty you provided for the debt of someone else. You could be subject to domestic relations proceedings (such as, unpaid alimony or child support). You could be found liable for injuries you caused to someone else (e.g., a car accident or professional malpractice). These are just a few means in which a creditor’s claim could arise against your assets.

What types of asset protection devices are available?

One of the most widely used devices for asset protection is insurance – life, health, automobile, medical, fire, malpractice, liability, and others are available and should be purchased as appropriate for your circumstances.

The most notable asset protection device in Florida is the homestead exemption. Florida law also provides an exemption to creditor claims against the money held in qualified retirement plans, Section 529 Florida Pre-Paid College Tuition Plans, Educational IRAs, and Health Savings Accounts.

Certain aspects of life insurance and annuities are also exempt from creditor claims. Joint ownership of property with a person who is not subject to the same creditor claim or asset ownership by certain types of trusts may also establish protection against a creditor. Assets owned by a business entity (an LLC, a corporation, a limited partnership) may be protected in varying degrees from claims of the creditors of the entity’s owner.

Each planning device is subject to strict and significant restrictions of when they are applicable, how much protection is provided to the assets, and if any distributions are also protected.

When is the time to plan?

Sooner is always better than later. However, if any of the following occurs, it may be too late to undertake asset protection planning without being subject to an allegation of fraud and/or a creditor’s attempt to overcome the purported asset protection by claiming a fraudulent transfer: knowledge of a threatened claim or of an event that may lead to a claim, knowledge of a pending investigation which may result in a creditor claim, a default in any monetary obligation, contemplation of filing for bankruptcy protection, or a transfer of assets which will result in the inability to pay reasonably anticipated debts as they become due (i.e., insolvency).

More detailed analyses of specific asset protection devices will be provided in future blogs. Meanwhile, the attorneys of Bogin, Munns & Munns, P.A. will be glad to assist you with an analysis of your personal circumstances and to provide recommendations of how to protect your assets.

John Wright is a corporate, probate and estate planning attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Wright welcomes questions and comments regarding the above and can be reached at jwright@boginmunns.com.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information. You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

Who Pays Attorneys Fees in a Lawsuit

admin — Thu, 10 Mar 2011 13:00:32 +0000

There are many steps to take before deciding to proceed with a lawsuit. One step is weighing the risks (i.e., cost) of proceeding with the lawsuit against the potential gains.

One risk, even if you prevail in the lawsuit, is that you will spend more money on your attorney fees (and the associated court costs) than you are awarded in the judgment.

Generally, in the United States, each party in a lawsuit pays for its own attorneys’ fees and court costs. There are 2 broad exceptions: (1) the lawsuit is based on a particular statute which includes a fee-shifting provision, or (2) the parties have contractually agreed in writing that the prevailing party is entitled to reimbursement of its attorneys’ fees and costs.

In contractual matters, the court has a fair amount of discretion in deciding whether or not to award attorneys’ fees to the prevailing party and, if they are awarded, the amount of such fees. This is true whether or not the contract includes an attorneys’ fees provision. The court can award attorneys’ fees to a party to ensure that a fair result is achieved.

To increase the likelihood that a court will grant the award of such fees, it is best for the parties to put such agreement in the written contract in terms that are clear and reasonable, fair to both sides, and demonstrated to be a term negotiated by the parties (versus a form contract).

The attorneys at Bogin, Munns & Munns can help you prior to signing a contract to ensure that your contract is well-drafted with an appropriate attorneys’ fee provision. After signing a contract, our attorneys can assist you in evaluating the strengths and weaknesses of your claims including the impact of attorneys’ fees on your decision. Our attorneys can also advise you if your potential lawsuit falls under any other means of shifting the attorneys’ fees to the prevailing party.

- John Wright is a corporate, probate and estate planning attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Wright welcomes questions and comments regarding the above and can be reached at jwright@boginmunns.com.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information. You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

TAGS: lawsuit, attorneys’ fees, court costs, fee-shifting, judgment, discretion, equitable remedy

Get It In Writing

admin — Thu, 17 Feb 2011 13:00:28 +0000

For the most part, an oral contract is as legally valid in Florida as a written contract. There are exceptions though.

Florida law creates a defense to a claim of breach of contract, called the Statute of Frauds. Generally, to defeat the Statute of Frauds and create an enforceable agreement, a contract has to be in writing and appropriately signed in the following situations:

a contract for the transfer of any interest in land. This affects not only deeds but includes, among other things, a lease, an option to purchase, and the grant of a mortgage or easement;
a contract for the sale of goods in excess of $500.00;
a contract in consideration of marriage, such as a prenuptial agreement;
a contract which cannot be performed within one year (excluding contracts of indefinite duration);
a contract guaranteeing the payments of another’s debts; and
a contract by the executor of a will to pay the debt of the estate from his/her own funds.

However, even if an oral agreement would be enforceable in your situation, the better practice is to get the agreement in writing signed by both parties.

Why?

The first reason is to avoid a dispute as to the precise terms of your agreements. Language can be imprecise. Memories fade with time. Signatories die. One party may have a sincere claim that the other party is failing to perform its obligations. If the written contract is sufficiently detailed as to each party’s obligations and rights, reviewing it and refreshing everyone’s memories may be sufficient to resolve the dispute.

The second reason is a matter of proof. Should the two parties be unable to resolve their dispute and seek a judicial resolution, the court will be able to analyze the terms of agreement without relying solely on the “he said-she said” testimony. It will be difficult for one party (say, Joe) to convince a court that he never agreed to do “X” if the written contract clearly says “Joe will do X.”

A court will generally only look to the actual written contract to determine what had been agreed upon. Therefore, your contract should be clear and thorough and contain every term that you think is important to your agreement. If the contract is vague (imprecise) or contains ambiguities (inconsistencies), the court may allow oral evidence (called “parol evidence”) to aid in the court’s job of interpreting the contract.

The same requirements apply to a modification of an existing contract. If the two parties agree to change the terms of a contract after they sign it, a contract modification should be put into writing documenting exactly what changes have been agreed to. If the modification is not so documented, the court may either determine that the modification is not valid or may take the parties’ conduct into account when determining issues such as liability and damages.

A corporate, probate and estate planning attorney at Bogin, Munns & Munns, P.A. can help you to draft a contract or an amendment to evidence the terms you have agreed upon, to review and revise a contract or amendment that the other party has prepared for you to sign, to review a signed contract to interpret your rights and obligations, or to sue the breaching party or defend you in the case of an alleged breach.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information. You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

TAGS: contract, agreement, oral contract, oral agreement, written contract, written agreement, validity, invalidity, enforceable, enforceability, Statute of Frauds, modification, amendment, deed, mortgage, option, lease, easement, prenuptial agreement, sale of goods, guaranty, proof, breach, breach of contract, interpretation, parol evidence

Can I really get out of paying my mortgage?

admin — Thu, 23 Dec 2010 15:49:30 +0000

It is no secret that the housing and mortgage industries are both in a real mess. Although everyone likes to point the finger at the other, it seems very clear that lenders and borrowers each share in some of the blame. In the wake of ever increasing foreclosure filings, many borrowers are looking for loopholes to avoid having to pay back the loan they agreed to and benefited from to purchase their property. Here is one recent example:

Just The Facts, Ma’am!

Husband and Wife own a home in Florida and declare it to be their homestead. Later they decide to also purchase the home next door. They hire a mortgage broker to assist in securing a loan on their behalf. Because Wife’s credit rating is superior, all loan applications are completed only in Wife’s name. All paperwork submitted to the lender state the purchase of the residence is for investment property only, and not even as a secondary residence. The note, mortgage, and related closing documents are only in the name of Wife and only signed by Wife. In reliance upon the closing documents, the lender provided the money for the purchase of the property. The deed for the property, however, was put in the name of both Husband and Wife. Shortly after the closing, Husband and Wife move to the new house (which was their undisclosed intent all along), declare the new home to be their homesteaded property, and rent out their old property next door. After nearly two years, Husband and Wife stop making loan payments on the new home. A foreclosure case is filed and Husband and Wife declare the mortgage to be void because, among other reasons, the note and mortgage were not signed by Husband. In short, they claim that Husband’s homestead protections trump the right of the lender.

Homestead Laws: Protections You Can Take to the Bank!

The Florida Constitution provides strong protections of the ‘family home’ against creditors. In short, Article X, section 4(a) states that a homeowner’s property is exempt from forced sale by creditors. There are three limited exceptions to the rule: (1) unpaid property taxes and assessments for the property, (2) mortgages for the purchase, improvement or repair of the property, and (3) liens for work performed on the homestead (such as home repair work). Under the above facts, however, Husband did not execute mortgage documents, and thus did not actually consent to the imposition of the mortgage lien. As such, the mortgage would be unenforceable against his interest.

Equitable Liens: Fairness Prevails in the End!

This of course would result in a windfall to Husband since the lender’s money was actually used to by him to obtain the property. Recognizing this inequity, the Florida Supreme Court has been clear that the homestead protections can be used only as a shield, not as a sword. The Court has also ruled that homestead protections, though generally impenetrable, can be pierced in situations where it would be inequitable for one party to retain a benefit without paying fair value for it. In these situations, the courts would impose an equitable lien against the Husband’s interest in the property to replace the mortgage lien in order to avoid an unjust windfall of the Husband at the expense of the lender. Obtaining the equitable lien, however, can be expensive and take time.

Consult an Attorney!

Whether you are purchasing a home or lending money to assist another person’s purchase of property, it is generally a large investment. Spending a little money to have a qualified attorney represent you at the closing (and revise documents as may be necessary) will give you peace of mind that your intent will be carried out with less stress, headaches and expense in the long run. Being penny-wise by not hiring an attorney up front may end up being pound-foolish for you in the end!

– Adam S. Towers , Esq., is a shareholder and manages the Gainesville office of Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. He welcomes questions and comments regarding the above and can be reached at atowers@boginmunns.com.

Am I Entitled to Overtime Compensation?

admin — Thu, 09 Dec 2010 13:00:03 +0000

This is a common question for employment lawyers, however, it is not always a simple question to answer as it often involves looking at a number of different factors before a proper answer can truly be given. It is always prudent to speak with an attorney as many misconceptions exist among both employers and employees as to overtime. Such analysis starts with the Fair Labor Standards Act (“FLSA”). The FSLA is a federal law that provides guidelines for overtime pay as well as minimum wage requirements, and child labor restrictions.

Not every employer is covered by the FLSA. For example, if the company in question has less than $500,000 in annual business volume, then the FLSA may not apply. There are, however, some exceptions to this rule.

Additionally, the FLSA, like many other employment laws, may not apply if the affected person is an independent contractor (as opposed to an employee). However, employers often improperly designate employees as independent contractors. Additionally, when examining whether the FLSA applies to a person the employer has designated as an independent contractor, the courts apply an “economic realities” test that is more stringent than many of the tests used with other employment laws.

Finally, even if the company and the prospective employee fall under the FLSA, there are still a number of exemptions to the FLSA that may apply. For example, there are exemptions that apply to certain executive, administrative, and professional employees. Other exemptions exist for outside sales employees, certain skilled computer professionals, and several other categories of employees. Of course, employers often improperly categorize employees as exempt from the FLSA’s overtime requirements, so speaking with a qualified attorney is always advisable.

Ultimately, as was noted in this brief article, overtime questions can often be more complicated than they initially appear for both employers and employees. The employment attorneys at Bogin, Munns, & Munns, P.A. can offer advice and assistance at any stage of a matter involving overtime compensation questions and have significant experience in representing both employers and employees in such disputes.

– Joseph Shoemaker, Esq., is an attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Shoemaker works out of the Leesburg office of the firm and welcomes questions and comments regarding the above and can be reached at jshoemaker@boginmunns.com

Divorce vs. Dissolution Do you know the difference?

admin — Mon, 11 Oct 2010 20:54:42 +0000

Divorce and dissolution of marriage are two terms that many use interchangeably and without understanding the difference. In Florida, marriages are not terminated by divorce, but rather the union of marriage is dissolved. In Florida courts, those seeking to end a marriage file a “Petition for Dissolution of Marriage.” They do not ask for a divorce. Divorce is a legal term that requires a finding of fault. In order to divorce her husband, a wife would have to show misconduct or fault by the husband. In Florida, we have no fault divorce. This means that, although the court does have to make a finding that the marriage is “irretrievably broken,” neither party has to provide evidence that the marriage is ending because of someone’s fault or misconduct. A marriage may be found to be irretrievably broken because the parties can no longer effectively communicate or they have just given up trying. To terminate a marriage in Florida, neither spouse has to provide evidence to the court that would rise to the level of a legal determination of fault, such as adultery or abuse.

– Mary Hoftiezer, Esq., is a domestic law attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. She welcomes questions and comments regarding the above and can be reached at mhoftiezer@boginmunns.com

Why do Private Roads cause Title Problems?

admin — Mon, 20 Sep 2010 21:00:22 +0000

We have a lot of real estate in Florida where people drive over private roads to get to their property. Then, when they want to sell the property, there is a title problem. The seller always asks, “Don’t I have a legal right to use the road if I have been using it all these years?”

The dirt road has probably been there for many decades …as long as people can remember. It may even be on their survey from when they bought the property … or from when they subdivided the property … or from when they did their land-home package to buy their mobile home. There might even be a description of the road included in the legal description of their property on their old deed or mortgage.

So, how can there still be a title problem? What if the property appraiser or the court house says it’s OK? Is there still a problem?

Yes, there may still be a problem. None of the things listed above actually gives you a legal right to use a private road. An owner of the land that you are driving over must have signed an “Easement” and recorded it in the public records in order for you to have the legal right to cross that property.

People always point out that there is a Florida statute that makes it illegal to landlock property. Or they point out that they could have acquired a right to use the road simply by using it all these years. These are both true; however, to rely on these legal rights for title purposes, you have to go to court and get a court order from a judge ruling that you have the legal right to use the private road. So, unless you have a signed court order, that statute or your prior use doesn’t really help.

To ensure that you don’t have this problem when you go to sell property, consult with a real estate attorney who can do a title search to determine if you have the legal right to use your private road. The real estate attorneys at Bogin, Munns & Munns, P.A. can help with matters relating to private roads and easements. Call Bogin, Munns & Munns, P.A. at (407) 578-1334 to schedule a consultation with a qualified real estate attorney today.

Are you liable for your landlords past due association assessments?

admin — Thu, 19 Aug 2010 20:55:03 +0000

You currently lease a home or condominium unit located in a community governed by a homeowner or condominium association. Your landlord has notified you that the association charges the landlord periodic assessments pursuant to its governing documents in order to properly maintain the common areas and for other purposes set forth in the governing documents. Your landlord retains the obligation to pay these assessments under the terms of your lease.

Unbeknownst to you, your landlord has ceased paying the association assessments due to the landlord’s current financial status and the recession. You are fully compliant and are not in default of any of your obligations under the terms of your lease with your landlord. So, why should it matter to you that your landlord isn’t paying the association assessments? Senate Bill 1196.

Senate Bill 1196 was recently signed into law and has a significant impact on tenants who lease properties governed by community associations. This new law modified Florida Statutes §§ 718.116(11) and 720.3085(8) to authorize a community association to demand that the tenant pay to the association all future monetary obligations related to the leased property if the landlord is delinquent in paying assessments due to the association. The association’s demand for payment of the delinquent assessments from you is continuing in nature and only terminates if the association releases the tenant from said obligation or the tenant vacates the leased property. The good news is that you would be entitled to receive a rent credit for all amounts paid to the association. The bad news is that the association is empowered to sue you for eviction if you fail to timely pay the association the assessments when due. The association, however, is not construed as your landlord and has no other duties to you. Due to this new law, it is imperative that you consult with a competent real estate attorney to review your lease agreement to protect your rights in the event your landlord fails to timely pay its association assessments.

– Henry M. Cooper, Esq., is a shareholder and handles the residential real estate practice of Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. He welcomes questions and comments regarding the above and can be reached at hcooper@boginmunns.com.

A Bird in Hand is Worth Two in the Bush : The Advantages of Mediation in Civil Disputes

admin — Fri, 13 Aug 2010 13:59:31 +0000

The familiar adage “a bird in the hand is worth two in the bush” means it is better to have a lesser, but certain, result than to risk everything for the mere potential of achieving a greater result. I often use this phrase to explain to my clients the benefits of reaching a settlement through mediation by obtaining a certain result, rather than continuing to litigate for a mere potential of achieving more, but risking receiving nothing.

Civil litigation is risky; no matter how much you believe you are right, there is no such thing as a “slam dunk” case. Civil litigation is adversarial – it is stressful, frustrating, and invasive, often requiring you to divulge otherwise private facts in a public forum. Civil litigation is costly, not only in terms of the fees and costs paid to your attorney but also the loss of your own time spent in your lawyer’s office or in court.

As a result of these inherent risks and costs, often, neither party “wins” by continuing to litigate. Rather, at the conclusion of a case, one party may receive a judgment that says he or she has the right to a certain amount of money from the other party. The “winning” party, however, may have endured more stress and frustration and incurred more in fees, time and costs than the judgment is worth. Further, the judgment that the “winning” party receives may not even be collectible.

Mediation is designed to avoid, as much as possible, these consequences. Mediation is the process whereby the parties try to reach a middle ground through a voluntary agreement facilitated by a neutral party, the mediator. At the mediation session, the mediator works with the parties to achieve an understanding of the factual and legal issues in dispute, and tries to help the parties agree to settle the dispute through understanding, acknowledgment, concession, and compromise.

Mediation is designed to be facilitative. Therefore, you must be prepared to discuss both the strengths and the weaknesses in your case (and yes, all cases have weaknesses) and listen to the other side with an open mind and an eye toward reaching consensus rather than furthering controversy. Because mediation necessarily involves compromise, issues resolved through mediation usually result in one party receiving less than he or she thinks to be entitled to, whereas the other party is usually giving more than he or she thinks just.

Thus, while mediation may not make you “winner”, it will avoid the risk that you will be a “loser”. Mediation puts you in control of your destiny; you decide what terms you can live with, not a judge or “jury of your peers” (who may have no more qualification to decide your case than possessing a driver’s license). There is certainty in the result, and your risk of going forward is eliminated. There is also the immeasurable value in putting a dispute behind you.

In summary, if you find yourself involved in litigation, consider opting for the “bird in hand” that may be reached through the mediation process.

– Nancy E. Brandt, Esq., manages the commercial litigation department of Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. She welcomes questions and comments regarding the above and can be reached at nancyb@boginmunns.com.

Do you need a Durable Power of Attorney?

admin — Tue, 27 Jul 2010 15:27:59 +0000

The Durable Power of Attorney is traditionally one of the basic documents executed when undertaking your estate planning, creating a mechanism to handle your financial affairs prior to your death. However, because of the broad powers granted in it, you should analyze the associated risks and benefits before signing one. In some circumstances, you are better off without it.

First, what is a “power of attorney”? Through a power of attorney, you designate the person or persons (your “agent”) who you are legally authorizing to handle your affairs. The designation may be limited in duration or in scope.

By designating a power of attorney as “durable” (and incorporating the appropriate language), the authority will remain in place even if you become mentally incompetent. Therein lies the value of this document in estate planning – it creates an easy means for someone to be appointed to manage your financial affairs should you become unable to do so. For maximum usefulness, the durable power of attorney should have no limitations or restrictions thereby allowing your agent to handle whatever may arise, whether anticipated or not.

But such broad powers are susceptible to abuse by a designated agent. Once you deliver a validly-executed Durable Power of Attorney to your agent, you run the risk that your agent may perform acts which you do not approve or which may not be to your benefit. You may be able to recover any funds improperly spent by your agent. However, you not only run the risk that your agent may be judgment-proof (e.g., has no collectable assets) but also incur the costs of attorney fees to collect such funds.

If you lose your mental competency prior to executing a durable power of attorney, a court-appointed guardianship may then be the only recourse available for someone looking to oversee your affairs. A guardianship proceeding can be both costly and time-consuming in comparison to the execution of a durable power of attorney yet both achieve the same results.

A guardianship will also require that the court first declare that you are not mentally competent to handle your affairs – a declaration which can be an emotionally unbearable consequence for many families.

In most instances, the durable power of attorney will be your best option, but the risks should first be understood. The estate planning attorneys of Bogin, Munns Munns are glad to consult with you on this and other matters when arranging your estate planning.

John Wright is a corporate attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Wright works out of the Melbourne and Kissimmee offices of the firm and welcomes questions and comments regarding the above and can be reached at jwright@boginmunns.com.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information. You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

Evicting A Tenant In a Distressed Market

admin — Wed, 14 Jul 2010 20:07:01 +0000

As Seen In the July / August 2010 edition of orlandoREALTOR

By: Henry M. Cooper, ESQ.

Under the Protecting Tenants At Foreclosure Act of 2009, certain tenants now have right post foreclosure sale. This act provides that when a foreclosure occurred on a federally-related mortgage loan or on any dwelling or residential real property, the party taking title to the property via a Certificate of Title post foreclosure sale assumes the property subject to the rights of a “bona fide tenant.” If this new owner desires to evict the bona fide tenant, the new owner must now give the bona fide tenant a 90-day notice to vacate. This assumes, however, that the bona fide tenant is current in rent payments and otherwise in good standing under the terms of the bona fide lease. If not, normal eviction procedures are applicable.

Notwithstanding the foregoing, if a “bona fide lease” was entered into before the date of the foreclosure sale, the bona fide tenant has the right to remain in the property until the expiration of the term of the bona fide lease. The bona fide lease may be terminated prior to the expiration of the term of the bona fide lease; however, if the new owner has sold the property to a purchaser who will occupy the property as a primary residence subject to the 90-day notice to vacate.

The act defines “bona fide tenant” to mean a tenant who is not the mortgage or the child, spouse, or parent of the mortgagor. In addition, the act defines “bona fide lease” to mean a lease that requires the receipt of rent that is not substantially less than the fair market rent for the property.

READ THE FULL PUBLICATION HERE.

I Just Signed a Contract But What Does It Really Mean

admin — Fri, 09 Jul 2010 21:26:45 +0000

There was a time when a handshake and your word was as good as any written contract. Those days, unfortunately, have long since past. Today, reaching an agreement and getting it in writing is a key to any successful transaction. Most people will enter into hundreds of contracts during the course of their lifetime, such as: entering into an employment agreement, opening a bank account or applying for a loan, renting an apartment or house, purchasing a vehicle, hiring a contractor to make home repairs, ordering products to be used in your business, entering into a partnership agreement, leasing an office for your business, purchasing an existing business, and buying a home. Here are a few suggestions to keep in mind when you are considering entering into your next contract.

Read it (Yes, even the fine print)!

I am absolutely shocked how often people say to me: “You must be an attorney because nobody else spends time to read that paperwork.” When you enter into a contract, it is important to know what it is that you are agreeing to do (or not do). The need to read and understand the terms of the contract becomes even more critical the higher the cost at issue. It is often said that the ‘American Dream’ is to own your own home or business. Although these generally are the largest single investments people will ever make, many people do not take the time to read the stacks of paperwork that make up the contract. If you are not going to read the paperwork yourself, at least hire an attorney to ensure that you are buying exactly what you think you are buying. The terms that make up a contract really do matter.

Clarify it!

It has been said that the practice of law is simply the science of words. An outrageous example of this was Bill Clinton’s response to a question before the grand jury, wherein he famously stated “It depends on what the meaning of the words ‘is’ is.” Do you and the party you are entering into a contract with have the same understanding of what the terms mean? If there is ever a dispute and you are unable to come to a prompt agreement, you may end up spending a lot of time and money having the court interpret the terms for you. At that point, the control over the interpretation may be out of your hands completely. For guidance on making that determination, the court may look at things such as: 1) the history of previous dealings between the parties, 2) the understanding that is common in the industry, 3) the terms as developed by our lawmakers or in the courts, and 4) public policy considerations. As a result, the court’s interpretation of the terms of the contact may end up being the exact opposite of what you actually intended the terms to mean. Always make sure the terms are clear and unambiguous before you sign the contract. If you are not clear about a term, ask for clarification before you sign the contract.

Keep it!

Make sure that you always keep your original contract, as well as any modifications and correspondence regarding the contract. It would be nice if everyone kept their word and abided by the promises contained in their contracts. Since that is not the case, however, you may need to hire at attorney to enforce your contract. Having all relevant documentation related to your contract is critical in this regard. An attorney cannot give you thorough legal advice about your rights without the documentation of the contract any more than a doctor should give you a diagnosis of illness without doing a thorough examination.

Consult an Attorney!

Being penny-wise by not hiring an attorney up front may end up being pound-foolish for you in the end! Spending a little money to have a qualified attorney review your contract (and revise as necessary) at the beginning will give you peace of mind that your intent will be carried out with less stress, headaches and expense in the long run. If you would like to consult with an attorney to review your contract, call Bogin, Munns & Munns, P.A. at (352) 332-7688 in Gainesville or (407) 578-1334 in Orlando.

Non-competition Agreements

admin — Wed, 30 Jun 2010 13:00:29 +0000

While non-compete agreements were once a rarity, they have become somewhat common in the modern workplace. Issues regarding the drafting, interpretation, and enforcement of such agreements are common topics for the employment lawyers at Bogin, Munns, & Munns, P.A. In this regard, the firm both meets with and often represents employers seeking to draft or enforce such agreements as well as the employees that are subject to same.

Generally speaking, there are numerous common misconceptions as to the legality of non-compete agreements. Prospective clients often believe that such agreements are either always enforceable or that they are rarely enforceable. The reality, however, is that neither is true. The courts look to a number of factors on a case by case basis in determining whether to enforce the terms of a particular agreement. Accordingly, getting advice from a qualified and experienced attorney regarding such agreements is certainly prudent for both affected employers and employees.

In Florida, non-compete agreements are governed by both statute and the decisions interpreting same. In this regard, section 542.335 of the Florida statutes provides the courts with both authority and some guidance as to the enforcement of non-compete and other related restrictive covenants. For example, as noted in such statute, such agreements must be in writing and executed by the affected employee to be valid. They must also, generally speaking, be reasonable in scope, time, and geographic area. However, the mere fact that an agreement may be unreasonable in one or more of these areas will not absolutely preclude enforcement as the courts are authorized to limit the application or length of the restrictive period while still enforcing same.

Additionally, it should be noted that merely having an agreement and a breach of same does not mean that the courts will enforce such agreement. In many cases, the key issue is whether the employer seeking enforcement can articulate one or more legitimate business interests supporting such restrictive covenants. While section 542.335 provides several examples of such legitimate business interests, it is, of course, advisable to speak to a qualified attorney as to the specific facts of your matter.

Ultimately, a dispute involving a non-compete agreement can be a costly endeavor for the affected employee, the prior employer, and even the new employer. In addition to money damages, such claims often involve requests for injunctive relief as well. Moreover, Florida law allows for the recovery of attorney fees by the prevailing party in litigation regarding such agreements. Of course, prudent actions by both employers and employees can often avoid litigation, but that is not always the case. The employment attorneys at Bogin, Munns, & Munns, P.A. can offer advice and assistance at any stage of a matter involving these agreements and have significant experience in drafting, enforcement, and defense of same.

Types of Joint Ownership of Property Amongst Individuals

admin — Wed, 16 Jun 2010 13:00:10 +0000

There are three common types of ownership for property owned by more than one person.

1. Tenancy by the entireties:

Only a husband and wife can own property as tenants by the entireties. If real property is owned by a husband and wife, there is a presumption of a tenancy by the entireties. In this form of ownership, there is a right of survivorship – if one spouse dies, the other gets the entire property. If it is your intent to establish a right of survivorship with your spouse, make sure that title to the property indicates the right of survivorship or designates you and your spouse as husband and wife.

2. Tenants in common:

If title to the property specifically describes the parties as tenants in common or, if there is no express indication of a right of survivorship between two unmarried persons, there is a presumption that the property is owned amongst the parties as tenants in common. In this ownership form, each tenant in common may freely transfer his or her interest and leaves his or her share of the property to his or her heirs or beneficiaries.

3. Joint tenancy with right of survivorship:

Two or more unmarried persons. The surviving persons will own all of the property upon the death of others. If it is your intent to establish a joint tenancy with the right of survivorship, you should expressly indicate on title to the property the “right of survivorship”.

– Spencer R. Munns, Esq., is a shareholder Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. He welcomes questions and comments regarding the above and can be reached at smunns@boginmunns.com.

Employee v. Independent Contractor : Part II of II

admin — Tue, 15 Jun 2010 14:25:49 +0000

The first part of this article discussed the economic realities test which is applied in minimum wage, overtime, and Family & Medical Leave Act cases. If the case at issue involves, for example, race discrimination under Title VII, sex discrimination, disability discrimination, etc., then the courts apply the common law test to determine whether the worker was an employee or an independent contractor.

The elements of the common law test are: (1) the intention of the parties (i.e., did the parties intend to enter into an employee/employer relationship or did they agree to create an independent contractor relationship); (2) the skill required in the particular occupation (this element is similar to economic reality test element number four); (3) the party furnishing the equipment and the place of work (this element is similar to economic reality test element number three); (4) the method of payment, whether by time or by the job (this element is similar to economic reality test element number two); (5) the type of employment benefits provided (i.e., if the employer provides the worker with medical insurance, then this factor tends to prove employee status); (6) the manner in which the work relationship is terminated (i.e., if the worker can be terminated at-will, then that tends to prove employee status); (7) the importance of the work performed as part of the business of the employer (this element is similar to economics reality test element number six); and (8) the manner in which taxes on income is paid (i.e., if the employer deducts standard payroll taxes, then this factor tends to prove employee status).

There are subtle differences between the economic realities test and the common law test. The critical difference is that the common law test is generally regarded as setting a slightly higher threshold to proving employee status. However, the courts are generally in agreement that even under the common law test, both tests are designed to measure the degree of control that the purported employer exerts over the employee. Therefore, the fact that an employer does not offer insurance benefits may have less to do with independent contractor issues and more with the fact that the employer simply does not wish to incur this cost. Furthermore, some courts have construed an employer’s unilateral refusal to deduct payroll taxes as a condition of employment not as proof of independent contractor status but rather proof that it exercises substantial control over the worker. Should you have any questions regarding your current arrangement, feel free to contact one of the employment attorneys at Bogin, Munns & Munns, P.A. to coordinate a consultation.

Implied Covenant of Good Faith and Fair Dealing In Contracts

admin — Fri, 21 May 2010 20:54:46 +0000

In all contracts there is an implied covenant of good faith and fair dealing. The purpose of the implied duty of good faith is to protect the parties’ reasonable commercial expectations.

This legal concept is fair and just and can often be relied upon by a party to a contract; however, there are limitations.

This duty of good faith and fair dealing must relate to the performance of an express term of the contract. It is not an abstract and independent term of a contract, which can be asserted to claim a breach when all other terms have been performed pursuant to the contract requirements.

The implied duty of good faith and fair dealing cannot be used to vary or modify a fully specified, unambiguous term of a contract. A court will not do that; it will not apply this legal doctrine in that manner.

Sometimes parties to a real estate contract or other contractual dispute seek to claim a breach of contract when things don’t go their way, even though there has been no breach of any particular contract term. This is not the proper application of this doctrine.

It is more properly raised when there is an express contractual duty or obligation on the part of one party, but such party has sole discretion in complying with such duty, but acts unfairly or in bad faith in carrying out that duty.

One example where application was appropriate, was where a party to a contract agreed to “vigorously pursue… recovery of underpayments” but was given “sole discretion” to determine whether it was a justifiable expense and exercised bad faith in exercising that discretion.

An example where application was not appropriate, was where a buyer of real estate agreed to pay an additional $5 million bonus if the buyer was able to obtain approval to construct 600,000 square feet or more of air conditioned saleable space. In this instance the contract did not impose on the buyer any duty to seek such approval and therefore there could be no implied duty to act in good faith in seeking such approval. In other words, there was no express duty to which the implied duty of good faith could relate.

In contractual dispute negotiations, the doctrine of implied duty of good faith and fair dealing can be very useful, but its application must be clearly understood.

Florida House and Senate Consider Bill Affecting Condominium Associations Ability to Collect Debts

admin — Wed, 28 Apr 2010 16:28:20 +0000

HB 0337 and SB 968, if enacted, would amend Florida Statutes 718.116 by providing condominium owners who are delinquent on their assessments an opportunity to receive a “notice of delinquency”. The notice would specify each assessment sought by the association, the date of the assessment or charge, and the corresponding interest, fee and cost attached to such unpaid assessments. Notice would need to be provided prior to any restriction, penalty or condition being placed upon that unit owner. It also would prohibit a condominium association from imposing penalties during a 20 day notice period or while an objection made during the notice period is unresolved. The notice requirement would not apply if the association has been in lien collection or foreclosure proceedings against the same unit owner within the proceeding 12 months or if the unit owner acknowledges in writing he or she owes the debt to the association. Once past the notice period, delinquent unit owners could be restricted from running for office, holding office, serving on committee, leasing their unit or using common areas.

The Senate version of the bill is passing through committee and is presently with the Judiciary Committee. The House version of the bill is now in the Criminal and Civil Justice Policy Council. So far, other than minor editing of the language, both versions of the bill are being treated fairly favorably.

Condominium Association boards should also be aware that there are numerous other potential bills that may affect their governance. To contact your legislator on any of these issues or to review these bills or track their progress, go to online sunshine at http://www.leg.state.fl.us.

Please contact Bogin, Munns and Munns if you desire a legal opinion or analysis of these bills or how these proposed laws would effect your association. With nine offices including South Daytona and Melbourne, Bogin, Munns and Munns can assist condominium associations in our coastal communities navigate these proposed legislative changes.

– Jeremy Hill, Esq., is a personal injury attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Hill works out of our Daytona office. He welcomes questions and comments regarding the above and can be reached at jhill@boginmunns.com.

Is your tenant a tenant?

admin — Mon, 12 Apr 2010 20:57:36 +0000

You have a home that you are leasing to a tenant. Your tenant fails to pay you rent and refuses to vacate the property. You may or may not be able to evict the tenant for non-payment or otherwise remove the tenant from the property. Your ability to do so greatly depends on the type of written agreement entered into by and between you and the tenant.

If you entered into a typical written lease agreement with your tenant, you would most likely be able to evict the tenant after giving the tenant the proper 3 day notice to pay rent or vacate. You may thereafter file an action for possession with the county court to regain possession of the property. This eviction procedure is on an expedited docket and may be completed in less than 30 days.

If the lease agreement contains an option to purchase, however, you may find that you are prevented from filing an eviction due to the tenant’s timely exercise of its option to purchase. A lease with an option to purchase is typically entered into when a buyer wants to purchase the home but needs some time to acquire a down-payment or build up his credit score. The lease with an option to purchase gives the buyer the right to purchase the property from the owner within a certain period of time at a mutually accepted purchase price.

Under Florida law, once the tenant exercises its option to purchase, the tenant is then considered an equitable owner of the property and cannot be evicted. The proper legal method for removing the tenant in this instance is ejectment. Ejectment is a statutory remedy found under Florida Statute Ch. 66 providing a person with a superior title interest in a property to request that the court order the current occupant to vacate the property restoring possession to the superior title owner. The occupant, however, may file a betterment petition with the court seeking reimbursement for the value of the improvements made by the occupant to the property while possessing the property. Ejectment actions are also under the jurisdiction of the circuit court and not the county court. Thus, these actions usually are more time consuming and expensive to prosecute.

It is imperative that a landlord/owner of a property consult with a competent real estate attorney to determine their rights, obligations, and remedies concerning rental property issues prior to entering into any agreement with a prospective tenant.

Residential Property Management Due Diligence

admin — Tue, 23 Mar 2010 13:23:12 +0000

Typically, a realtor/property manager conducts a detailed investigation concerning the prospective buyer/tenant to ensure that this person is capable of performing his obligations under the subject transaction. However, how many realtors/ property managers perform the same due diligence with their clients? In this market, it is vital that you as a realtor/property manager perform proper due diligence when asked by an owner to sell and/or manage a residential property. At minimum, prior to accepting the listing/management agreement you should perform the following due diligence of your potential client:

1. Research the public records to ensure that your client is the title owner of record to the property.

2. If you have a corporate client, make sure the person you are dealing with is the authorized representative of the company.

3. Research the clerk of the county court records to verify your client does not have a pending foreclosure suit, Notice of Lis Pendens, or bankruptcy.

4. Research the county tax records to determine if your client is current on his taxes. If not, that is the first red flag.

5. Call the homeowners association and find out if your client is current on his assessments. This is also a sign that your client is experiencing financial difficulty.

6. Request from your client proof of payment of the last 4-5 mortgage payments to determine whether he is delinquent or not.

7. Request from your client a current certificate of insurance on the property. You do not want to manage an uninsured property.

Florida real estate law and regulations are very comprehensive and contain very specific requirements that are constantly evolving. It is imperative that a realtor or property manager consult with a competent real estate attorney concerning rental property issues.

Home Affordable Foreclosure Alternatives Program (HAFA)

admin — Fri, 19 Mar 2010 14:33:41 +0000

Have you heard in the news that you can get paid for letting your home go through foreclosure? There is a new government program that does provide financial incentives to the borrower. The U.S. Treasury Department issued Supplemental Directive 09-09 which is being called HAFA. HAFA is a part of a previous program called HAMP (Home Affordable Modification Program).

HAMP provided guidelines for Loan Modifications while HAFA provides guidelines for Short Sales and Deeds-in-Lieu of Foreclosure.

A “Loan Modification” is where the borrower keeps the house and the mortgage but the terms of the mortgage are changed to make the payment more affordable.
A “Short Sale” is where the home is sold for less than is owed on the mortgage. This is done with the mortgage lender’s approval.
A “Deed-in-Lieu of Foreclosure” is where the borrower gives the home to the mortgage lender in exchange for canceling the mortgage loan.

The lender must first evaluate the borrower for a Loan Modification under HAMP. The new HAFA directives will require lenders to then consider whether a borrower is eligible for a Short Sale or a Deed-in-Lieu. The new HAFA directives will take effect on April 5, 2010, and expire on December 31, 2012.

All of the following criteria must be met to be eligible for HAMP and HAFA:

The home is the borrower’s homestead property;
The mortgage is a First Mortgage originated before Jan. 2, 2009;
The mortgage is delinquent or reasonably will be in the future;
The current mortgage balance is less than $729,750.01; and
The mortgage payment exceeds 31% of the borrower’s gross income.

If a borrower qualifies for a Short Sale under the new HAFA directives, the lender will be required to forgive any deficiency on the mortgage loan. This will be a big help to borrowers because many borrowers who sold their home in a Short Sale are now being pursued by collections agencies to collect the deficiencies owed to the banks. The HAFA Short Sale directives prohibit the lenders from reducing Realtor commissions below 6% and provide the following financial incentives:

- $1,500 for borrower relocation assistance
- $1,000 for services to cover administrative and processing costs
- $1,000 match for investors for allowing a total of up to $3,000 in short sale proceeds to be distributed to 2^nd mortgage holders

The new directives require the borrower to make an effort to sell the home through a Short Sale before they can sign a Deed-in-Lieu of Foreclosure. If the lender accepts a Deed-in-Lieu (DIL) under the new HAFA directives, the lender may not require a cash contribution or promissory note from the borrower and must forfeit the ability to pursue a deficiency judgment against the borrower.

The borrower may request their lender evaluate whether they are eligible for a Short Sale or DIL. If the borrower is not eligible, then the lender must notify them in writing and explain why.

Bogin, Munns & Munns, P.A. is a full-service law firm with experienced commercial lawyers who represent many banks and mortgage lenders. If you are a loan servicer who is interested in legal representation and assistance with the HAMP and HAFA directives, you can call our office at (407) 578-1334 to schedule a consultation.

Be Wary of Red Flags

admin — Tue, 23 Feb 2010 15:35:53 +0000

The residential leasing market has been dramatically changed due to the Great Recession that has given rise to new laws and regulations promulgated by the federal government. Now more than ever, residential rental property managers need to be aware of these new laws and regulations to avoid unintended legal consequences for themselves and their clients.

The Fair Credit Report Act was amended to include new identity theft regulations. Officially titled “Identity Theft Red Flags and Address Discrepancies Under the Fair and Accurate Credit Transactions Act of 2003” (the “Act”), this Act was created to detect, prevent, and mitigate identity theft for all users of credit and other consumer report information. As this type of information is routinely used by residential property managers to verify the financial ability and background of a prospective tenant, the Act imposes certain requirements on residential property managers to detect, prevent, and mitigate “Red Flags”. The Act defines a Red Flag as a “pattern, practice, or specific activity that indicates the possible existence of identity theft.”

The Act requires that the residential rental property manager have certain reasonable policies and procedures in situations where the residential rental property manager obtains a prospective tenant’s personal identifiable information from a credit or other consumer report. These reasonable policies must include the ability to (a) identify relevant Red Flags that may occur when the residential rental property manager obtains the personal identifiable information from the prospective tenant, (b) detect any Red Flags upon review of the provided personal identifiable information from the prospective tenant, (c) appropriately respond to any detected Red Flags, and (d) update the policy to reflect changes in risks to the rental property owner and the residential rental property manager. It is highly recommended that you document these policies and procedures in writing.

One of the more common Red Flags is an address discrepancy. The residential rental property manager must have reasonable verification and fraud prevention policies in place to verify a prospective tenant’s identity when there is a discrepancy in the prospective tenant’s address. In most circumstances, the Red Flag will occur when the residential rental property manager receives a Notice of Address Discrepancy from a consumer reporting agency. This Notice informs the residential rental property manager that there is a discrepancy between the address found in the tenant’s credit report and the address listed on the rental application. To comply with the Act, the residential rental property manager may (a) verify the information contained in the credit report directly with the prospective tenant, or (b) compare the information contained in the credit report with other information found in other reports or sources (e.g. drivers license). The residential property manager, however, does not have a duty to report any discovered fraud.

Fortunately, the date for mandatory compliance for this Act has been extended until June 2010 by the Federal Trade Commission. This enables the residential rental property manager to have sufficient time to retain the services of a real estate attorney to assist them with the development of these policies to ensure compliance with this Act.

The New Rules of Procedure for Initiating a Mortgage Foreclosure Action in Florida

admin — Tue, 16 Feb 2010 19:13:37 +0000

On February 11, 2010, the Florida Supreme Court made significant changes to the Florida Rules of Civil Procedure as they pertain to initiating new residential foreclosure actions in Florida’s Courts. The Court’s opinion follows a series of changes that are being made on the local court level to stave off the glut of residential foreclosure filings that are clogging the court system.

In its recent opinion, the following rule changes are made applicable to new residential foreclosure filings:

Fla. R. Civ. P. 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. This means that the lender must swear to, or “verify”, the veracity of the factual allegations being made in the complaint. The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.
Form 1.924 – Affidavit of Diligent Search, is modified as follows. First, the form is standardized and thus more user-friendly. There is a new section for the affiant to insert the “Attempts to Serve Process and Results”. There is also a “catch-all” section for the affiant to list all additional efforts made to locate defendant. Furthermore, there is now a section which reads: “I inquired of the occupant of the premises whether the occupant knows the location of the borrower-defendant, with the following results: ________.” A major change is also that the Affidavit of Diligent Search is now signed by the person who actually performed the search – likely a process server – and not the attorney on the case who may not have personal knowledge of the process server’s efforts.
The opinion now requires the use of a new form, 1.996(b) – Motion to Cancel and Reschedule Foreclosure Sale. A party cancelling a foreclosure sale is required to provide a reason for the cancellation. Said the Court: Currently, many foreclosure sales set by the final judgment and handled by the clerks of court are the subject of vague last-minute motions to reset sales without giving any specific information as to why the sale is being reset. It is important to know why sales are being reset so as to determine when they can properly be reset, or whether the sales process is being abused. . . . Again, this is designed at promoting effective case management and keeping properties out of extended limbo between final judgment and sale.
The opinion adopted a new form of Final Judgment of Foreclosure. This new form has many changes to include clarity, bring the form in line with current statutory provisions and requirements, increase readability, and to conform to prevailing practices in the courts.

These amendments went into effect upon release of the Court’s opinion on February 11, 2010.

What happens when the owners of a company can no longer reach agreement?

admin — Thu, 28 Jan 2010 22:12:20 +0000

Many people create a new business with 2 owners each owning 50%. When times are good, usually at the start of the business, the equal ownership is generally not a troublesome issue. However, when times get bad, or even when times are good, the 2 individuals may develop different ideas on how to run the company. Without some ground rules on how to resolve these differences, a management deadlock will result. If such a deadlock exists, in the extreme case, one of the owners can request a court to judicially dissolve the company. If sufficient grounds exist, the court will order a dissolution with the company liquidating its assets, paying off its creditors and distributing the remaining moneys, if any, to the owners.

Such liquidation may not be in the best interest of all parties. In that case, one of the owners may use this circumstance to leverage the other owner to buy him/her out at an above-market price. This situation can be avoided if the owners sign an agreement at the outset of the business, or even thereafter, stating, among other things, the rules for breaking a management deadlock and/or for determining the price to be paid in the case of a buyout of an owner’s interest. Such agreement may also include restrictions regarding the sale of the ownership interest to a third party and procedures for handling the death or disability of an owner.

Legal counsel can help business owners anticipate these and other issues and suggest ways to minimize their interruption of your business.

– John Wright, Esquire, is a corporate attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Wright works out of the Melbourne and Kissimmee offices of the firm and welcomes questions and comments regarding the above and can be reached at jwright@boginmunns.com.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information. You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

Employment Discrimination

admin — Wed, 30 Dec 2009 17:53:06 +0000

People are often surprised to learn that there are no laws that require employers to be reasonable, polite, or even fair in their decisions regarding hiring, firing, promotions, demotions, discipline, and job duties. Employers can legally make employment decisions for good reasons, bad reasons, or even for no reason at all. For example an employer could announce that “everyone with brown shoes on” would be terminated at the end of the day and then do just that without risk of violating any employment laws. Of course, such an odd circumstance might make the local news, but if the employer’s true reason for making the decision was truly based on shoe color, then it would not violate the law.

A different result might be forthcoming, however, if the employees that were fired took notice of the fact that they were all white males, were all over the age of 60, or were all disabled in some fashion. If so, then the employer may have violated one or more of the various Florida and federal laws that protect against workplace discrimination. Such laws prohibit, among other things, discrimination in employment decisions based upon race, national origin, color, sex, disability, religion, age or marital status.

If you feel that you have suffered an act of workplace discrimination, then you are likely best suited to speak to a qualified Orlando employment law attorney as soon as is practicable. It should be noted that most discrimination claims cannot proceed immediately to court. Typically, the employee has to first file a complaint (termed a “charge of discrimination”) with either the federal government (the Equal Employment Opportunity Commission or “EEOC”) or the Florida government (the Florida Commission on Human Relations or “FCHR”) and allow the government an opportunity to investigate their discrimination issues.

Once a charge of discrimination is filed, the government will send a copy of the charge to the employer and will typically offer to set up a mediation (informal settlement conference) wherein an impartial person tries to assist the parties resolve their dispute prior to the government investigation. If, however, the dispute cannot be resolved through mediation or mediation does not occur, then the government will conduct an investigation as to the alleged discrimination. At the end of the investigation, the government will notify the employee as to its findings and will provide the employee with instructions on how to seek available remedies under the law. Such remedies could include either an administrative hearing or a civil action in a court of law.

Of course, as with any legal claim, time is of the essence as the law limits the time that you have to file. Generally speaking, charges of discrimination in Florida must be filed no later than 365 days from the alleged discriminatory act. The employment attorneys at Bogin, Munns, & Munns, P.A. have handled many such claims from the initial filing all the way through to federal trial and even appellate claims. The firm employs several experienced employment attorneys that are available for consultations and assistance at any stage of employment law proceedings.

Divorce in Florida

admin — Wed, 23 Dec 2009 20:21:29 +0000

If you are considering filing for divorce in Florida then you have probably been filled with lots of information from your friends, family members and acquaintances. The purpose of this article is to provide general information regarding divorce to the general public. It is by no means intended to comprehensively cover the subject. It is merely being offered as a general source of information to address only the issues of divorce specifically addressed within it.

Because divorce or “Dissolution of Marriage” as it is technically referred to in Florida Courts is so prolific, there are many misconceptions and much confusion related to this area of the law. This is largely because divorce is such an emotional, stressful and highly charged affair. As a result, the events surrounding it become shared with others and this leads people to believe that the results of one person’s divorce might or should be similar to someone else’s. Nothing could be further from the truth.

Divorce is highly fact intensive and the only person with whom someone should consult with regarding a potential divorce is an attorney licensed by the Florida Bar with extensive experience in Family Law. Only such an attorney can provide an individual with the advice and expertise that is necessary relative to seeking a divorce. One of the most important things to remember with regard to filing for divorce in Florida is that Florida is a “no fault” divorce state. This means that either spouse can file for divorce if that spouse can prove that the marriage is “irretrievably broken.” The reasons for the marriage being irretrievably broken can range from infidelity or to the fact that one of the spouses simply isn’t in love with the other spouse anymore. Regardless, from an evidentiary standpoint, proving that a marriage is irretrievably broken is not difficult.

Divorce in Florida has been largely codified within Florida Statutes Chapter 61. Chapter 61 delineates the factors to be considered within the context of the major components of divorce. These components or “areas” are: equitable distribution; time-sharing with any minor children (formerly called custody); child support of any minor children; alimony (when applicable); enforcement of orders or judgments previously entered by the court as well as other areas. These areas will be more fully explored in future articles by this author.

Divorce is consistently ranked by many sources as the second most stressful life event (after the death of a child or spouse) that could happen in one’s life. It cannot be overstated enough that it is extremely important that one have a strong support system (family, counseling, clergy, friends, etc.) when dealing with divorce. However, what is most tragic is the effect that divorce can have on children.

It is extremely important that regardless of what is sought by either party within a divorce proceeding, that the best interests of the children be put first. Parents must quickly realize and accept that although they may not be married to each other; they will always be the parents of their children. Courts in Florida severely frown upon parental alienation including disparaging the other parent in front of a minor child or not allowing a parent contact with a minor child. In fact, alienating a child from a parent is so serious that it can lead to limiting the alienating spouse’s contact with a child. Divorcing spouses with children must learn to co-parent effectively and with the best interests of the children in mind. This will ensure that the least amount of harm will be inflicted upon the minor children. Learning how to co-parent during and after a divorce is an acquired skill and it is wise to seek counseling services and the advice of qualified professionals experienced with helping children and families of divorce.

In conclusion, divorce is a confusing, nebulous concept to individuals who have not had the benefit of consulting with an attorney licensed by the Florida Bar experienced in family law. It is important to take the “high road” when going through a divorce as it will best allow one to get past it with dignity and with less stress and hurt feelings. Most importantly, if one has minor children, it is paramount to consider the children’s needs first and to make the children’s well-being the primary consideration at the inception of any divorce proceeding.

– William Rosenfelt, Esq., is an Orlando family law attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. He welcomes questions and comments regarding the above and can be reached at wrosenfelt@boginmunns.com

Employee v. Independent Contractor: Part I of II

admin — Thu, 17 Dec 2009 21:55:12 +0000

Orlando employers are increasingly attempting to classify workers as independent contractors. The upside for the employer is substantial in terms of avoiding payroll taxes, worker’s compensation insurance, minimum wages, overtime wages, and, even, compliance with anti-discrimination laws which apply to employees and applicants for employment and not to independent contractors of the employer.

The upside to the worker of an independent contractor arrangement (i.e., the illusory promise of higher wages unencumbered by payroll taxes) is often outweighed by the downside to this arrangement. The worker will still be required to pay income tax on wages earned in an independent contractor scenario. Furthermore, the worker may have to retain an accountant or CPA to keep track of receipts and complete their personal and “business” tax returns at the end of the fiscal year. These are costs that are not readily apparent to the worker.

Furthermore, the downside to an independent contractor arrangement could entail diminished social security returns in the future, unpaid medical bills resulting from workplace injury not covered by medical or worker’s compensation insurance, lower wages for longer hours worked, and, even, exposure to discriminatory treatment or harassment. These downsides are often unforeseen by the worker. Therefore, the law applies two (2) tests to examine whether a worker was misclassified as an independent contractor.

The first test (i.e., the economic realities test) is applied to minimum wage, overtime, and Family Medical Leave Act situations. The factors considered under the economic realities test are: (1) the employer’s degree of control over the worker’s job functions (i.e., the higher the degree of the employer’s control over the worker, then the more likely that the worker is, in fact, an employee); (2) the worker’s opportunity for profit or loss (i.e., if the worker is required to exclusively work for the employer or per the employer’s terms of pay, then the more likely that the worker is, in fact, an employee); (3) the relative investments of the employer vis-à-vis the worker (i.e., if the employer has invested more time and money into the enterprise than the worker, then it is more likely than not that the worker is, in fact, an employee); (4) the degree of skill and initiative required to perform the worker’s job (i.e., if the work requires average or below average skill or training, then it is more likely that the worker is, in fact, an employee); (5) the permanency of the relationship (i.e., if the worker is working for a specific period of time or completing a specific project (e.g., installing new plumbing for the employer) rather than working on an at-will basis, then the worker is more likely an independent contractor); and (6) the nature of the worker’s services to the employer’s business (i.e., to use the plumbing example again, if the employer’s business is a law firm, then the person retained to install the new plumbing is not likely to be construed as an employee of the business).

The second test used to determine whether a worker is an employee is the common law test. The common law test has eight (8) factors which we will explore in part two of this article. So, stayed tuned. In the meantime, should you have any questions regarding your current arrangement, feel free to contact one of the employment attorneys at Bogin, Munns & Munns, P.A. to coordinate a consultation.

Difference between a promissory note and the mortgage

admin — Thu, 03 Dec 2009 22:03:04 +0000

While most know that a promissory note and a mortgage are the two essential documents of a real estate loan, some don’t know the differences between them. The note is evidence of indebtedness and a promise to repay the loan. The mortgage is a pledge of security for the debt, usually specific realty. If a borrower fails to meet its obligations to pay back the loan under the promissory note, the lender may exercise its remedies established in the mortgage to foreclose on the property that is the subject of the mortgage.

Be sure to understand the specific terms of the note, such as the loan amount, interest rate, maturity date, and repayment and prepayment provisions. Additional noteworthy clauses in the note or mortgage include: due on sale, prohibition against junior financing, option to call or recast, and default.

Triple Net Lease Issues

admin — Fri, 20 Nov 2009 22:15:51 +0000

There are many types of leases that can be structured for the leasing of real property. The type of lease that is appropriate for any given transaction will depend on the parties’ objectives, financial strength, long term or short term intentions for the property and the management skills of the landlord. One of the structures often used by landlord who do not have management capabilities or who desire to simplify and take the risk out of leasing is the triple net form of lease.

In triple net leases, generally, the tenant is required to pay for the utilities, taxes, insurance and maintenance. This form of lease is often favored in sale-leaseback deals. While it may be clear that the tenant has responsibility for payment of the real estate taxes, questions can arise as to rights and responsibilities of the parties related to disputes over taxes.

Let’s say that the real estate taxes assessed against the leased property are too high in the opinion of the landlord and/or tenant. Both have a vested interest in keeping the taxes down. By doing so the tenant saves money and the landlord prevents precedent for higher valuations in the future.

Many leases, however, fail to address the issues related to legal challenges made to a valuation deemed to be too high. For example: what rights does tenant have to challenge or appeal the assessment? Is the tenant required to get the landlord’s approval to file an appeal or lawsuit disputing the taxes? Does the landlord have the right to approve any settlement? What if the landlord and tenant cannot agree on the terms of any settlement? If there is a refund, who is entitled to the refund?

Leases can become long and laborious and many times the landlord and the tenant resist lengthy forms of leases. Of course, its best to be cautious and not be overly verbose in lease drafting. However, it is important to cover critical issues such as the rights and obligations of the parties related to real estate taxes imposed on the property subject to the lease. As usual, while the tenant or landlord may not see the necessity of addressing such issues, they will surely thank their counsel when such an issue arises during the term of the lease.

Tax Liability Under The Foreign Investor in Real Property Tax Act

admin — Fri, 06 Nov 2009 16:44:00 +0000

Q. Are there any legal ramifications if my client is not a U.S. citizen and is selling his residential property located in Florida?

A. Yes. Your client may be subject to the Foreign Investor in Real Property Tax Act (FIRPTA). FIRPTA requires that the buyer involved in your transaction withhold 10 percent of the “amount realized” by your client who is a “foreign person” in connection with the subject purchase and sale transaction. The buyer or the agent is then required to remit the 10 percent withholding tax to the I.R.S. together with the required I.R.S. forms within 20 days of the closing.

Q. My client is a non-U.S. citizen who is selling his residential property located in Florida. He does not want 10 percent of his net sales proceeds withheld by the buyer. Are there any exemptions to FIRPTA?

A. Yes. It is important that you discuss FIRPTA with your client early in the real estate transaction to enable your client to take advantage of some of the exemptions available to foreign persons under FIRPTA. There are three common exemptions to the act. First, if your client is not considered a “foreign person” under FIRPTA, he is exempted from compliance with its provisions. Your client would have to furnish a non-foreign certificate stating that the he is not a foreign person as defined under FIRPTA because he is (1) a U.S. citizen, (2) a resident alien, or (3) a domestic corporation, partnership, trust or estate. Second, your client would be exempt from FIRPTA if the buyer meets the residency requirement. The withholding requirement is waived if the buyer is acquiring the property for use as a primary or secondary residence (not as an investment) and the amount realized is $300,000 or less. The buyer will be required to sign a residency certificate at closing affirming the amount realized and that the buyer has definite plans to reside in the property for at least 50 percent of the number of days that the property is in use during the first two years from the closing date. Third, although FIRPTA requires 10 percent to be withheld, the amount withheld cannot exceed your client’s maximum tax liability. Accordingly, although not a complete exemption, your client may request the I.R.S. to determine his maximum tax liability with respect to the sale of his property. Your client can accomplish this by filing an IRS Form 8828-B Withholding Certificate. This form may be filed at any time prior to closing. Please note, however, that your client will not be able to file for the withholding certificate without a Taxpayer Identification Number. You should inform your client to immediately apply for a Taxpayer Identification Number in case he plans to utilize this exemption.

Q. My client is the buyer in a Florida real estate purchase and sale transaction involving a foreign seller who is subject to FIRPTA. I have reason to believe my buyer is falsifying a Residency Certificate in order help the seller avoid the withholding tax by stating that he is purchasing the Florida property as his primary residence when I know it is for investment purposes. What should I do?

A. Although it is the buyer’s primary responsibility to determine the foreign person’s status and withhold the tax, you may also be held liable for the tax under certain circumstances. If you have knowledge that the Non-Foreign Certification or Residency Certificate is false, you must provide notice of this falsity to the other party and closing agent. If the notice is not provided, you may be held liable for the tax that should have been withheld to the extent of your compensation from the purchase and sale transaction. If a foreign seller is involved in a residential property purchase and sale transaction, it is recommended that both the buyer and seller consult with a real estate attorney to ensure that all parties are legally protected and fully comply with the provisions of FIRPTA.

What do I do if I am sued in a Florida state court?

admin — Fri, 30 Oct 2009 21:00:25 +0000

For the purposes of this discussion we are going to assume that we are talking about Florida state courts. The rules and timelines in federal and other special courts can be quite different. First, you need to determine if you are sued. Letters from collection agencies or attorneys demanding payment or some action are not lawsuits. The first thing that will happen when you are sued is that a document called a complaint will be filed with the court. At this point, you probably will not know it has happened unless you check the clerk’s records online everyday. In addition, a document called a summons attached to the complaint will demand you serve written defenses within 20 days after service of the summons upon you. Generally, the summons and a copy of the complaint must be served upon you in person. However, anyone over 16 that resides with you can be properly served on your behalf. If you find out that someone is trying to serve you, trying to duck the service and ignoring the lawsuit may not work. In some instances, service can be made by other means such as publication in a newspaper. If so, a judgment can be entered against you without your knowledge.

A summons will generally instruct you to file written defenses with the clerk of the court and send a copy to the Plaintiff or his attorney within 20 days. The 20 days start the day after service and don’t exclude weekends and holidays. However, you must read the summons carefully, as there are special types of summons that could have shorter time periods, a demand that you show cause why you filed certain documents in the public record or ask you to show up for a hearing– as is required in small claims court. We will discuss small claims court procedures a little later in this blog.

A written defense can be in the form of a document called an answer. This is merely admitting or denying the allegations in the complaint. You can also allege what are called affirmative defenses at the end of your answer. These are defenses that you can raise even assuming that the allegations against you are true. Some of these affirmative defenses can be considered waived if not immediately pled. Another possible written response if a document called a motion to dismiss. This can be done when the complaint does not state a cause of action or other technical defense assuming that the allegations in the complaint are true. Almost always, this motion to dismiss will need to be filed and served as your first response. Otherwise, you may be deemed to have waived your grounds to dismiss by merely filing an answer and affirmative defenses.

In small claims court, the summons will have a court date and time for a pre-trial conference. Small claims cases involve disputes no more than $5,000.00. A written defense is not required to be filed with the court. Yet, it is very important to show up on time for the pre-trial conference. Otherwise, a default will be entered against you that will eventually be turned into a final judgment without further notice to you. In some counties, the judge will discuss the case with the parties and advise them of the procedures of the court and consequences of certain actions. Other counties will send the parties directly to a mediation conference. Mediation is a process where someone called a mediator will meet with the parties to see if an acceptable compromise can be accomplished. In any event, the first hearing is not the trial. So, don’t bring witnesses or expect to present evidence.

If you are being sued, it is recommended that you consult with an experienced litigation attorney in Orlando immediately after being served a summons. This attorney can provide guidance and file a proper response that will preserve your rights and defenses. If tempted to go it alone, keep in mind that if you are an officer or managing member of a defendant legal entity such as a corporation or limited liability company, court rules require that it be represented by an attorney, unless the matter is in small claims court. A non-attorney’s papers filed on behalf of such an entity will be stricken by the court.

– Brian Gillis, Esq., is an Orlando litigation attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. He welcomes questions and comments regarding the above and can be reached at bgillis@boginmunns.com

Should I Use A Do-It-Yourself Will From The Internet? How Does That Differ From An Estate Plan?

admin — Tue, 13 Oct 2009 15:40:06 +0000

Many websites promise to let you make your own Will quickly and easily online, and then download it for printing. Is this a good idea? Do you know enough about Wills, Trusts and Probate to know what your legal options are? Do you know how to sign your Will properly so that it will be legally enforceable and easily probated without your witnesses having to testify after your death?

WILL BASICS

First, let us review some basics about Wills. Your Will is a written document by which your estate can re-title your assets at your death. The Will lets you decide and list who gets what. You can give specific items to certain persons and you can choose who should receive your assets. You can leave your assets to companions, lovers, or partners, regardless of marriage; to foundations; or to noncitizens. You can specify alternate beneficiaries to inherit in the event the first person named in the Will dies before you.

Through a Will, you can leave property to minor children (whether your own or not) or grandchildren. You can choose the best method to manage property left to a minor or young adult. The Will may create a children’s trust or use the Uniform Transfers to Minors Act.

You can designate your children’s guardian. In certain cases, you can state a case for the appointment of a personal guardian other than the child’s remaining natural parent to care for your minor children.

You can give away pets as well as funds to care for pets. You cannot leave money or property directly to an animal because animals cannot legally own property.

You can exclude or disinherit relatives. However, you cannot make an inheritance conditioned on the heir’s marriage or divorce, or on their change of religion. Such conditions will be ignored by the Probate Court, and the heir will be entitled to the inheritance free of conditions. You also cannot, by Will, leave money for an illegal purpose or direct that something illegal be done.

A WILL DOES NOT CONTROL EVEYTHING

A Will does not control all your assets. The Will does not leave proceeds of a life insurance policy to someone other than the beneficiary named in the policy. The same rule applies with regard to assets in a Living Trust, to pension plan or retirement benefits, and to bank or brokerage accounts with a trust designation. This is because you, by naming a beneficiary in each of these documents, have contractually disposed of that property already. These items are not subject to the Will (unless you name your Estate as the beneficiary).

HOW IS AN ESTATE PLAN DIFFERENT FROM A WILL?

An Estate Plan usually includes a Will but it is much more comprehensive, addressing far more than just the distributing your assets at death. It is a plan designed to transfer assets both during life and at death through such means as living trusts, testamentary trusts, life insurance contracts, and joint tenancies and other ownership documents. Documents possibly needed for a full Estate Plan include

A Will
Trust agreements
Powers of attorney
Deeds
Beneficiary designation forms
Retirement benefit elections
Pay-on-death instructions
A marital agreement
A preneed guardian declaration
A living Will
A health care surrogate designation.

Your attorney can design your Estate Plan to help you accumulate assets economically and efficiently during your life. Your Estate Plan will help to ensure that your lifetime needs are met (such as college tuition and retirement funding). If taxes are a concern, your Estate Plan can transfer your assets both during life and at death to result in reduced income, estate, gift, and inheritance taxes, all within the framework of your objectives.

With an Estate Plan, your heirs can avoid Probate Court altogether. You can also minimize losses from forced liquidation of property, and can maximize protection and flexibility afforded by trusts or other devices for beneficiaries. An Estate Plan can provide for a disadvantaged child, establish a scholarship fund for a grandchild, handle potential problems arising from a subsequent marriage when you have children from a first marriage, and arrange for charitable gifts.

Your attorney can determine and advise you if the Will document, by itself or in conjunction with a power of attorney and health care advance directives, will be sufficient to accomplish your objectives. If it appears to the attorney that a Will cannot adequately satisfy your present needs, your attorney can recommend other estate planning measures for you.

Using a licensed attorney to prepare your Estate Plan gives you peace of mind that your desires will be carried out with minimal stress and expense to your heirs. If you live in Florida and would like to consult with an attorney regarding your estate planning alternatives, call Bogin, Munns & Munns, P.A. at (352) 332-7688 in Gainesville or (407) 578-1334 in Orlando.

– Zana Dupee, Esq., is an attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mrs. Dupee works out of the Gainesville office of the firm and welcomes questions and comments regarding the above and can be reached at zdupee@boginmunns.com.

Triggering Events To Release of Escrowed Funds

admin — Mon, 14 Sep 2009 21:08:36 +0000

A neutral third party who is typically a law firm, title company, or real estate brokerage company is entrusted to hold in escrow a buyer’s earnest money deposit until this money is either credited to the buyer at the closing of the transaction or is dispersed to either the buyer or seller if the transaction fails to close. As an escrow agent, the neutral third party has a fiduciary responsibility to both parties in the transaction and is required to exercise reasonable skill and ordinary diligence in the maintenance of the escrow funds.

An escrow agent is required to keep funds in escrow until disbursement is properly authorized. Proper authorization would consist of (a) the transaction closing and the escrowed funds being credited to the buyer, (b) written release of the escrowed funds signed by both parties to the transaction in the event the transaction fails to close, or (c) a court order directing the escrowed funds to be released to a specified party in the event the transaction fails to close.

Additional requirements may be imposed on the escrow agent depending on who is holding the funds in escrow. For instance, a title insurance company is subject to the provisions of Florida Statute §626.8473 and is required to keep the funds in escrow until disbursement is properly authorized as set forth above. A law firm acting in the capacity of a title agent is further regulated by the Florida Bar imposing strict ethical rules on the attorney regarding the holding and disbursement of escrowed funds. In certain circumstances, a real estate brokerage company has reporting requirements imposed on them by the Florida Real Estate Commission and also has certain settlement procedures they must follow as set forth in Florida Statute §475.25(1)(d)(1).

In today’s residential real estate market, many escrow agents have disbursed escrowed funds to developers in connection with new construction transactions wherein the developer provides a “default certification letter” to the escrow agent pursuant to Florida Statutes §501.1375. Simply receiving a default certification from the developer, however, is legally insufficient to trigger the lawful release of escrowed funds to the developer. Pursuant to Florida law, a buyer must be afforded a judicial hearing which provides the buyer with the opportunity to present its evidence and argument as to whether a default occurred by either party and who is entitled to the escrowed funds as a result of this judicially determined default. Absent a signed release by the parties, this hearing must precede the release of the escrowed funds by the escrow agent to any party.

If you are a buyer or seller who is involved in a residential escrow deposit dispute, it is recommended that the buyer or seller consult with a real estate attorney to provide legal guidance and take proper action to enforce your claim to the escrowed funds.

– Henry M. Cooper, Esq., handles the residential real estate practice of Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. He welcomes questions and comments regarding the above and can be reached at hcooper@boginmunns.com.

The Owners Title Insurance Policy : Why You Need It

admin — Fri, 11 Sep 2009 20:49:17 +0000

The purchase of your home may be the single largest investment that you will make in your lifetime. At closing, you are given a deed to your home and you think – “Great, I own it. As long as I pay my mortgage, taxes, contractors, and homeowner’s dues, no one can take it away from me.” For the most part (at least in Florida), that is true. But what do you do if someone does try to take your home away from you, claiming that you do not hold good title to the property?

The answer is to make a claim on your owner’s title insurance policy. At closing, you will have (or at least should have) purchased an owner’s policy of title insurance that insures that you have “good title” to the home. Depending on the policy terms, an owner’s title insurance policy may insure against all kinds of potential title problems, including:

Title to the home being vested in someone else. For example, suppose you buy your home from Sally Seller, who claims to be unmarried. Several years go by, and at some point, you decide to either sell the home, or perhaps refinance your mortgage. It is not until that time that you learn that Sally Seller lied at closing – in truth, she was not unmarried and in fact legally owned the home with her husband, Sam Seller. Since Sam didn’t sign the deed to you, he now claims he has an ownership interest in your home. Your owner’s policy of title insurance may offer you coverage for this title problem.
A defect, lien or encumbrance on your property. Let’s go back to Sam and Sally Seller. Suppose Sam and Sally Seller own the home encumbered by a mortgage from Big Bank. You agree to buy the home, and you incur a purchase-money loan, secured by a mortgage, from Community Bank. If all goes well, at the closing table, some of the funds from your loan from Community Bank will pay off the Sam and Sally Seller’s loan from Big Bank, and Big Bank will release its mortgage against your home. Usually, this occurs. But what if Big Bank (because it is so big) makes a mistake and applies the money paid at your closing to a different loan on a different property. That leaves Big Bank’s mortgage still on your property. The Sellers, thinking that their mortgage is satisfied, stop making their monthly mortgage payments to Big Bank. Big Bank then files to foreclose its mortgage on your home! Your owner’s policy of title insurance may offer you coverage for this title problem.
Lack of access to your property. Our now-famous couple, Sam and Sally Seller, own a home in the country, which you buy and move into. You access this property by driving down a dirt road which runs off of the main highway. You have noticed that there is a gate and fence at the entrance of the dirt road, but you think nothing of it and for some time, you use the dirt road to get to your home. One day, you find the gate to the dirt road is now locked and you can’t get home. You then learn that the dirt road is on property owned by Robbie Rancher, who has never granted an easement over his property to use the dirt road and he’s now decided he doesn’t want you driving up and down his dirt road to get to your home. Your property is landlocked any without legal access. Your owner’s policy of title insurance may offer you coverage for this title problem.

Like any other policy of insurance, an owner’s title insurance policy will contain exceptions and exclusions form coverage, and the examples above are not meant to provide an indication that coverage would, in fact, exist in any particular scenario. However, these are real-life examples of claims I have handled when a title insurer has hired me to represent an insured owner.

Like any other policy of insurance, you may never need it. However, if you do need title insurance, and a covered claim is made, an owner’s policy of title insurance is invaluable. If the claim is covered under the policy, not only will the title insurer provide to you an attorney to defend your title to the property, the title insurer will also be obligated to either to “fix” the problem (if it can be fixed), or pay you the monetary losses you sustain in the event the problem cannot be fixed.

The purchase of an owner’s policy of title insurance is not required by law in Florida. However, in my opinion, it is absolutely necessary that you protect your real estate investment through the purchase of title insurance. Not only will you buy protection you may in the future need, you also buy some peace of mind in knowing that if a covered claim is made, the title insurance company will protect and defend your title to your home. Don’t close on a purchase of a home without investing in an owner’s policy of title insurance.

Landlord Tenant Relationship In a Distressed Market

admin — Fri, 28 Aug 2009 15:32:06 +0000

The current economic downturn and recession have presented new challenges in connection with rental properties in Orlando and surrounding Central Florida areas. Now more than ever, it is vitally important that you have a complete understanding of your rights, obligations, and remedies regarding a rental property transaction or situation.

As a landlord, your tenant comes to you one day and informs you that he was served with a summons and complaint for mortgage foreclosure and has the right to terminate the lease or, at minimum, stop paying rent. Generally speaking, your tenant would be incorrect. Your written lease is still legally binding upon the tenant until such time as the tenant’s leasehold interest is foreclosed upon the issuance of the Certificate of Sale. This is partly due to the fact that you, as the owner of the property, have the right to redeem your interest in the property up until the Certificate of Sale is issued. Until this event occurs, the tenant still has the obligation to timely pay the landlord rent and fulfill his other obligations under the lease.

Under a recently passed federal legislation entitled Protecting Tenants At Foreclosure Act of 2009, however, certain tenants now have rights post foreclosure sale. This Act provides that when a lender forecloses its “federally-related” mortgage on a residential property, the person or entity taking title to the property via a Certificate of Title post foreclosure sale assumes the property subject to the rights of a tenant who is not the borrower or the child, spouse, or parent of the borrower. If this new owner desires to evict the “bona fide” tenant, the new owner must now give the tenant a 90 day notice to vacate. The new owner may also have to honor the term of the tenant’s “bona fide” lease if the lease requires the receipt of rent that is not substantially less than the fair market rent for the property. In such case, the tenant may remain on the property until the expiration of the term of this “bona fide” lease unless the new owner has sold the property to a purchaser who will occupy the property as a primary residence subject to the 90 day notice to vacate.

Florida real estate law and regulations are very comprehensive and contain very specific requirements that are constantly evolving. It is imperative that a landlord, tenant, realtor, or property manager consult with a competent real estate attorney to determine their rights, obligations, and remedies concerning rental property issues.