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Recently announced changes to the Florida Realtors/Florida Bar Contract for sale and purchase will go into effect on November 1, 2021. Buyers and sellers will see numerous revisions to the previous contract. Seven updated riders and three entirely new riders, including mold inspection, seasonal/vacation rentals, and pace disclosure, will be added.
The new contract extends the definition of “Loan Approval” to include the buyer being approved for financing as well as the lender having received a satisfactory appraisal if one is required before the “Loan Approval Period” expires. In addition, buyers can now hold off on informing sellers that their loans have been approved until the end of the “Loan Approval period.” Whereas the old contract required the buyer to advise the seller of the loan approval promptly.
“Personal Property” has been redefined to now include thermostats, doorbells, television wall mounts, television mounting hardware, mailbox keys, storm protection items, and hardware. Intercoms were deleted from the definition.
Additionally, the new contract clarifies the definition of “Closing” to require that all closing documents and funds required for closing are received and collected by the closing agent. The Consumer Financial Protection Bureau (CFPB) delivery requirements have reduced the extension of the closing date from ten days to seven days in the new contract as well.
As of November 1, texting will not be a viable method of communication regarding notices as it is seen as an unreliable way to prove a notice is delivered. All notices are required to be delivered personally or by mail, fax, or email.
One timely revision, which expanded the definition of Force Majeure, includes various instances that we have come to know as our “new normal.” The new definition includes “governmental actions and mandates, government shutdowns, epidemics or pandemics.”
If you are looking for help with real estate transactions or litigation, Massey Law Group has a team of experienced attorneys ready to make the process easier for you. Visit our webpage and schedule a consultation for more information.
You have just signed a sweetheart of a contract to sell land with a mobile home on it. Visions of dollar bills dance in your head. Suddenly, you receive a call from the closing agent asking you to provide an original mobile home title. You think to yourself, “what mobile home title?”
In many instances, if you sell a piece of property with a mobile home on it, you will need to provide the closing agent with an original Certificate of Title in order to close. For example, if the property is a mobile home cooperative unit, mobile home condominium unit, or a fee simple lot with a mobile home on it, unless the mobile home title is retired, the mobile home title will need to be transferred with the Department of Highway Safety and Motor Vehicles while the real property will need to be transferred with the Clerk of Court.
But what happens if you do not have a Certificate of Title? Worse, what if the DHSMV cannot identify your mobile home so that it can issue a duplicate Certificate of Title?
When all other avenues are exhausted, you will need a Court order to obtain a title to the mobile home. This is done through the filing of a declaratory action pursuant to Fla. Stat. Chap. 86. In declaratory actions, litigants request the Court issue a judgment clarifying and affirming rights, obligations, and responsibilities of one or more parties to the dispute.
In cases of an unidentified mobile home with a missing title, a property owner will request that the Court enter judgment awarding the title to the property owner, assigning new identifying numbers to the mobile home, and directing the DHSMV to issue a new title to the property owner, upon application and payment of all required fees. The legal process leading up to the entry of a declaratory judgment can be either fairly straightforward or quite complicated, depending on the individual circumstances.
The lawyers at MLG are experienced in obtaining declaratory judgments relative to unidentifiable mobile homes. Contact our office today and speak to a knowledgeable attorney to find out if a declaratory action is right for you.
With the Coronavirus back on the rise in Florida, Floridian dreams of a quick rebound to the economy have yet again been dashed. With the unemployment rate tripling from 4.4% in March 2020 to 12.9% in May 2020, property owners are struggling to make their mortgage payments.
Although lenders have instituted financial relief programs, such as deferring mortgage payments, waiving late fees, lowering interest rates, and suspending the filing of new foreclosure actions, at some point, relief and loan accommodations will come to a halt and, distressed assets will be in danger of foreclosure.
Potential post-pandemic bank losses from failed loans loom large. However, by taking smart and practical steps to prevent losses, lenders are in a prime position to aid in the re-establishment of a strong economy and establish themselves as leaders in the community.
Accordingly, it is essential now that lenders reassess their pre-foreclosure due diligence processes so that when the appropriate time comes, they can quickly determine foreclosure viability.
Generally, a lender will need to complete a two-prong evaluation to determine whether foreclosure of a distressed asset is financially practical. First, the lender will need to review the loan to determine whether it is ripe for collection. Second, the lender will need to consider the property condition to determine whether there is value to support foreclosure.
As lenders learned during the Great Recession, pre-foreclosure loan review is essential for assuring an efficient foreclosure process. Prior to filing a foreclosure action, at a minimum, lenders should complete the following steps:
In addition to loan review, performance of a thorough due diligence as to physical property conditions through inspection and investigation is critical. Examples of questions lenders should ask are: Are there any regulatory compliance issues surrounding the property? Is there environmental contamination that must be mitigated? Is there unfinished construction? Or, is the property damaged from lack of use?
By thoroughly evaluating a distressed property prior to foreclosure, lenders can prevent expensive and time-consuming foreclosures of properties that ultimately will result in lender losses.
Regulatory Compliance Issues
Prior to initiating a foreclosure action, lenders should take care to confirm that there are no regulatory compliance issues surrounding the property. For instance, the following is a list of some of the regulatory compliance issues lenders should consider prior to foreclosure:
Naturally, if there are regulatory compliance issues, a lender should weigh the cost of bringing the property into compliance along with the cost of foreclosure against the estimated value of the property to determine if there is value to proceed.
Environmental Issues
Along with regulatory issues, lenders should research whether there is any environmental contamination affecting the property that would make foreclosure nonviable. This is especially true when it comes to properties with environmentally sensitive activities, such as auto repair shops, industrial facilities, commercial properties with leach fields, and dry cleaners.
The following is a list of some of the environmental risk indicators lenders should consider prior to initiating a foreclosure:
Unfortunately, lender reliance on a clean environmental bill of health at loan origination does not guarantee there are no environmental issues when it comes time to foreclose.
At origination, a lender may have used a limited scope environmental report to vet the environmental risk. However, while such a report may be sufficient for a low-risk property, the less-intrusive report may have failed to identify environmental contamination liabilities for higher-risk properties.
Further, although there may have been no environmental contamination at loan origination, conditions on the property or surrounding properties could have changed since the lender conducted the original due diligence resulting in contamination to the property.
Construction Issues
In vetting a loan for foreclosure, lenders should also take into consideration various construction issues.
For instance, stalled construction due to lack of funds can result in the lender having to complete the project. In cases where the lender takes back the property at its foreclosure sale, lenders need to weigh the value of the property against the cost of completing the project or the cost of demolition.
Further, regardless of whether a lender ultimately decides to foreclose or not, incomplete project sites can host a slew of issues lenders must be aware of. For instance, for project sites where only grading has occurred, stormwater runoff can pick up sediment and other pollutants such as building materials, concrete washout, and oil and solvents. Such runoff can enter the stormwater system and discharge the contamination into local streams, rivers, and lakes. Lack of stormwater controls due to stalled construction can lead to civil and sometimes criminal liability, not to mention potential damage to a lender’s reputation.
Property Physical Conditions Issues
What makes post-pandemic pre-foreclosure due diligence unique for lenders is that the hurried mass closing of buildings with limited notice and without proper decommissioning of building systems may have resulted in unintended property damage, which ultimately will reduce property value.
With people rushing to comply with “Stay at Home” orders, lenders need to be especially diligent in verifying the physical condition of any property which they are considering foreclosing on.
For instance, prior to initiating foreclosure, lenders should complete a physical inspection of any building and consider the following:
Lenders who complete extensive pre-foreclosure due diligence will position themselves to suffer less financial loss due to the pandemic. By pursuing viable foreclosures and charging off nonviable foreclosures as business losses, lenders can save thousands of dollars in unnecessary legal fees and costs, not to mention needless costs of property mitigation, repair, and upkeep. Ultimately, such a conservative approach to post-pandemic foreclosures will aid in the re-establishment of a strong economy, which will benefit everyone.
Under a new law, authorized notary publics in the State of Florida may now perform remote online notarization for persons located anywhere in the United States by use of a secure audio-video connection. The law, codified in Fla. Stat. Chap. 117 Part II, went into effect on January 1, 2020, and revised Florida’s notary public laws to include interactive audio-video conference as a means to meet the requirement that persons personally appear before the notary.
Previously, in order for a Florida notary to complete a notarial act, the notary and the signer were required to be in the physical presence of each other. With the new law, provided both the notary and signer can see and hear each other via audio-video communication technology, the performance of the notarial act may be done through electronic means.
What is equally innovative is that witnesses may also be remote, provided the witnesses conform with the statutory requirements for using the audio-video communication technology. Although the remote online notary must be located in Florida, neither the signer nor any witnesses must be located in the State of Florida. For instance, the signer could be in New Hampshire and the witness in California. In instances where parties are located in other states, Florida law governs over the notarial act. In all other aspects, the remote online notary is subject to the same rules and regulations as a traditional notary public.
Additional Requirements for Remote Online Notarization Acts
There are, however, some additional requirements for a remote notarial act to comply with statutory requirements. Particularly, a remote notary may not perform a remote notarial act unless he or she does so using a qualified remote online notarization service provider. The provider must be capable of providing a secure audio-video platform, advanced identity proofing and credential analysis, and long-term document storage in compliance with Florida law. Notaries are not permitted to perform notarial acts through the use of non-qualified audio-video technology, examples being Zoom, Facetime, or Skype.
Steps to a Remote Online Notarization
To begin the process, a person or business uploads documents to be signed and notarized to the qualified platform. The platform then notifies the online notary that the documents are ready. The signer accesses the platform and begins an authentication process necessary to verify the signer’s identity. The notary starts a recorded video chat session with the signer and any witnesses and completes identity validation and credential analysis. The signer then digitally signs the documents, and the notary performs an electronic notarization. The signer and/or business entity receive copies of the notarized documents, and the platform uploads a copy of the audio-video recording to a digital journal for the notary.
Allowed Remote Notarial Acts
An online notary that is registered with the Department of State can perform any notarial act over an audio-video connection except solemnizing a marriage and, until July 1, 2020, notarizing the execution of an electronic Will. Beginning on July 1, 2020, the signing of wills can be conducted entirely electronically online via remote presence through video. As to real estate closings, remote notarization is allowed; however, all parties, including the lender, must agree to the use of the process.
Cost to the Consumer
The cost to the consumer for remote online notarization is slightly more expensive than an in-person notarization. Per Florida statutes, the fee of a notary public may not exceed $10 for any one in-person notarial act. An online notary public may charge a fee, not to exceed $25, for performing an online notarization. In addition, an online notary public may charge a fee not to exceed $20 per transaction record for making and delivering electronic copies of a given series of related electronic records, except if requested by a party exempt from payment pursuant to Florida statutes.
Conclusion
In passing the new law, it was the hope of the Florida legislature that remote notarization would provide a more convenient and efficient option for people who require notary services. Massey Law Group, P.A. now offers remote notarization services. For more information, or to schedule a notarization, call 813-868-5601 or email jcodding@masseylawgrouppa.com.
The above is intended to inform firm clients and friends about recent developments in the law, including analysis of statutes and new case decisions. This update should not be construed as legal advice or a legal opinion, and readers should not act upon the information contained herein without seeking the advice of legal counsel.
You and your brother inherit a mansion from your long-lost wealthy uncle. You want to sell the property so you can get cash now. Your brother wants to keep the property, but he is unable to pay you for your share of the property. What do you do?
In cases where joint owners of a property cannot agree to the disposition or management of the property, Florida law allows for the statutory remedy of partition. In an action for partition, the joint owners request that a Court determine the best way to dispose of the joint property and supervise the disposition process.
Any joint owner of the property, other than husband and wife who own the property by the entireties, may file an action for partition. The defendants to the action are the remaining property owners.
Once a joint owner files an action for partition, the Court decides whether to physically divide the property, if feasible, and give each owner a portion, or sell the property and divide the proceeds amongst the joint owners.
Partition Actions Resulting in a Sale or Litigation
If the Court orders a sale, the Court then must determine how to divide the proceeds of the sale. First, proceeds must be applied to any outstanding mortgages or liens encumbering the property. Second, the Court must determine if one joint owner is entitled to more proceeds than the other. For instance, in cases where one joint owner has solely paid the mortgage, the Court may order that joint owner to receive a larger distribution for his contribution to the property. Third, once the disbursements for liens and contributions are made, the balance of the proceeds is distributed to the joint owners. With regard to the attorneys’ fees and costs incurred for the action, per statute, each party must pay their share.
Although partition is available, joint owners should endeavor to utilize the legal remedy as a last option. Litigation by its nature can be costly. Also, it is generally the case that a property sold through a private sale will result in a higher price than that sold through a courthouse auction. Joint owners will likely have better results if they can come to an agreement and avoid litigation.
If you think you might be in need of a partition action, contact Massey Law Group, P.A. to schedule a consultation with an attorney experienced in partition settlement negotiations and litigation.
The above is intended to inform firm clients and friends about recent developments in the law, including analysis of statutes and new case decisions. This update should not be construed as legal advice or a legal opinion, and readers should not act upon the information contained herein without seeking the advice of legal counsel.
In an effort by the legislature to bring relief to the Circuit Court’s heavy caseloads and to move cases through the court system faster, as of January 1, 2020, jurisdictional limits in Florida’s trial courts have been modified to allow for lower courts to handle more cases.
Jurisdiction is the legal principle by which a court is allowed to try cases and rule on the matters before it in lawsuits. In Florida, there are two trial courts – the Circuit Court and the County Court. In most instances, the critical factor in determining whether the lawsuit is brought in Circuit Court or County Court is the amount in controversy, otherwise known as the amount of damages the plaintiff is seeking.
Traditionally, County Courts have handled cases with a $15,000 jurisdictional threshold, and Circuit Courts have handled cases where the amount in controversy exceeds $15,000. With the new change, County Court now has jurisdiction to handle lawsuits with a $30,000 jurisdictional threshold.
Additionally, on January 1, 2023, the County Court’s jurisdictional limit will adjust again, allowing for County Courts to handle cases with a $50,000 jurisdictional limit.
Florida Jurisdictional Limits for Small Claims
In further changes, as of January 1, 2020, small claims jurisdictional thresholds increased from $5,000 to $8,000 and appeals of County Court orders or judgments with an amount in controversy greater than $15,000 will be heard by the District Courts of Appeal until January 1, 2023, when the provision repeals.
Finally, although the new law creates significant changes, it maintains the current rules that limit the provision of subsidized court mediation services to County Court cases with an amount in controversy up to $15,000.
Because jurisdictional thresholds are not the only factors to consider in determining which Court has jurisdiction to hear a case, it is important to hire a knowledgeable litigation attorney to guide you through the litigation process. The attorneys at Massey Law Group, P.A. are experienced litigators who can evaluate your commercial or real estate case and help you determine how best to proceed to achieve the relief you desire.
To learn more about the changes to Florida jurisdictional limits, watch:
The above is intended to inform firm clients and friends about recent developments in the law, including analysis of statutes and new case decisions. This update should not be construed as legal advice or a legal opinion, and readers should not act upon the information contained herein without seeking the advice of legal counsel.
Due to a recent court ruling, condominium purchasers may now be responsible for payment of the entirety of delinquent assessments owed by previous owners of a unit rather than just the delinquent assessments owed the previous owner.
In Coastal Creek Condominium Association, Inc. v. FLA Trust Services LLC, Florida’s First District Court of Appeal held that a purchaser of a condominium unit is liable for unpaid assessments that came due during the ownership of all previous owners. The ruling is in direct conflict with cases out of the Third District Court of Appeal that hold that a purchaser of a condominium unit is liable for unpaid assessments that came due during the ownership of the previous owner.
In Coastal, JP Morgan Chase Bank, NA obtained a final judgment of foreclosure against property owners Todd Levraea and Tracy Langly. At the foreclosure sale, Homes HQ, LLC (“Homes HQ”) purchased the property. Six weeks after Homes HQ took title, it quitclaimed the property to FLA Trust (“FLA”).
The condominium association subsequently filed a foreclosure action pursuant to Fla. Stat. 718.116(1)(a) in which it demanded FLA pay all previous owners’ unpaid assessments, which accrued from 8/15/15 of Levraea/Langly’s ownership through Home HQ’s transfer of title to FLA on 7/26/16. At the trial level, FLA successfully argued that under the statute, it was only responsible for the previous owner unpaid assessments during Home HQ’s ownership from 6/13/16 to 7/26/16. On appeal, the appellate court overturned the trial court and held that FLA was responsible for unpaid assessments for all previous owners.
As a practical matter, until the Florida Supreme Court addresses the conflict, buyers of property located in the First District must pay all unpaid assessments that came due during the ownership of all previous owners whereas buyers of property located in the Third District are only liable for unpaid assessments that came due during the ownership of the previous owner.
As to purchasers in the remaining districts, it is unclear which interpretation holds sway. Buyers should take caution that, until the matter is settled, associations in the remaining districts will likely begin demanding payment of delinquent assessments that came due during the ownership of all previous owners rather than just the previous owner.
The above is intended to inform firm clients and friends about recent developments in the law, including analysis of statutes and new case decisions. This update should not be construed as legal advice or a legal opinion, and readers should not act upon the information contained herein without seeking the advice of legal counsel.
Thanks to a recent change in legislation, sellers of property in Florida may benefit from fewer closing delays caused by the pre-closing discovery of open and expired building permits.
Under new legislative amendments, the turnaround time for clearing old, expired permits is significantly shortened due to more owner-friendly permitting laws. For example, rather than hiring a contractor, an owner may now act as an “owner-builder” to finish out incomplete work. Additional provisions provide that an owner may hire a new contractor to finish the work without that contractor being liable for the prior contractor’s work and that permits expired at least six years may be closed without delay.
Generally, permitting issues arise when the majority of work done in accordance with a building permit is completed, but no final inspection is called for, leaving the permit in an “open” status. Because most jurisdictions historically did not notify an owner that a permit remained open, owners were unaware of the problem until they sought to sell their property, and the closing agent discovered an open permit during a permit search.
Key Legislative Changes Impacting Open Permits in Real Estate Closings
Under the law as previously written, upon a closing agent’s discovery of an open permit, the process of clearing the permit could become onerous in cases where, for example, the original contractor was no longer in business or the building code had changed.
The following summarizes the key legislative changes that make the permit-clearing process less burdensome for Florida property owners and closing agents:
The application of these provisions should dramatically reduce the time, labor, and costs associated with addressing stale open permits, getting your closing to the table without delay.
The above is intended to inform firm clients and friends about recent developments in the law, including analysis of statutes and new case decisions. This update should not be construed as legal advice or a legal opinion, and readers should not act upon the information contained herein without seeking the advice of legal counsel.
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