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.
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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.
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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.
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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.
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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 (11th Cir. 2001).
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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.
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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?
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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.
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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?
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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. Click here to read more »
