Articles Posted in Real Estate Law

Southwest Florida, and particularly Ft Myers, Cape Coral, and Naples, is a haven for non-typical real estate transactions. Out-of-state retirees purchasing their snowbird destination, worldwide investors seeking rental and commercial property opportunities, and families purchasing vacation homes are just some of the types of people making real estate purchases.

It’s an excellent idea to hire an attorney who specializes in real estate for the average home purchase, here are 21 reasons why you might need one on board for your Southwest Florida real estate experience. 

Reason #1 – You’re An Out-of-State Buyer

Recently, a young couple in Naples, Florida, entered into a contract to buy their first home. They put down $3,000 worth of earnest money. A purchase contract was drawn up. One of the contract’s contingencies was that the final date of sale would be on a date prior to the young couple’s end date on their apartment lease.

Two weeks before the closing, the sellers told the buyer they would have to extend the closing date due to moving complications. The seller was then in breach of contract and the buyers were in danger of not having a home to live in.

All too often, there are three different parts of a real estate contract that directly address each party’s responsibilities in the contract of sale. Terms or conditions for the seller, for example, might be the replacement of a roof when selling a residential home before the sale is complete.

Buying a house can be a very exciting endeavor, but it can be expensive, complicated, and even occasionally confusing. For most of us, purchasing a home or property is one of the largest purchases we will make— it’s a major life event! Hiring a real estate attorney can help you navigate the twists and turns of real estate and even help you save money (and stress).

As you go through the process of purchasing a property, you will deal with agents, banks, and title agencies at every turn, and no one will have your best interest—or your pocketbook—in mind. That is, except for your real estate attorney, who has been hired solely to protect your interests.

Here are just a few ways a real estate attorney can help you to make the most of your investment.

Whether buying or selling a home or commercial space, real estate can be a highly confusing field. There is a great deal of information associated with buying and selling, and while some of it is easily understandable, much of it may be unclear or have sneaky hidden meanings.

Luckily, an experienced real estate attorney can take out the headache and confusion from baffling forms, contracts, or agreements to ensure you’re making a well-informed decision. So, in what specific situations should you speak with a real estate attorney? Read on to find out.


Deciphering Documentation

In the recent case of Bold MLP, LLC v. Smith, et al., the First District Court of Appeal in Florida decided an issue involving the interpretation of a property lease. The plaintiff purchased property located in Pensacola that was subject to a lease. Shortly after the plaintiff received the first rent payment as the new owner of the property, the relationship between the plaintiff and its tenants turned sour. The plaintiff moved to terminate the lease, which resulted in a lawsuit.

The trial court initially entered a declaratory judgment in favor of the tenants, finding that the lease was enforceable. The plaintiff appealed, asserting a number of arguments. One of its main arguments before the First District was that the trial court did not interpret the rent provision of the lease correctly. The lease agreement provided that the monthly rent will be $800 for the first year, $875 for the second year, and $950 for the third year. It also included a three-year renewal provision, which the tenants chose to exercise. Providing no reasoning behind this decision, the trial court concluded that the monthly rent for the renewal period would be fixed at $950 per month.

The plaintiff pointed to Florida precedent stating that “where the lease is silent on the issue of rent in the renewal, then there is not a binding agreement and meeting of the minds.” Based on this, the plaintiff asked the appellate court to invalidate the entire lease agreement because it failed to provide a rental rate. This would allow the plaintiff to evict the tenants and to avoid the three-year renewal option.

In CRP II – Miramar, LLC v. The French Quarters Condominium Owner’s Association, the First District Court of Appeal considered a case involving an appeal between condominium owners. The plaintiff, Miramar, was developing a new phase of a mixed-use development. The defendant, French Development, owned a property adjacent to the development site. The two companies signed an “Easement and Maintenance Agreement.” As part of the agreement, Miramar agreed to construct a swimming pool and other amenities on its property that would be available to residents at both condominiums. In exchange for this promise, French agreed to share in the maintenance cost of these improvements. The parties also agreed to assign the rights and obligations of the agreement to their respective homeowners’ associations.

Miramar did not construct the pool and additional improvements. It told French instead that market conditions, contractor issues, and financing matters rendered the project undoable. French’s homeowners’ association sued Miramar. During that lawsuit, Miramar forfeited its ownership of the property in a foreclosure proceeding. The homeowners’ association joined the new owner as a defendant in the lawsuit.

In its complaint, the homeowners’ association alleged two causes of action. First, it sought a declaratory judgment that the agreement between French and Miramar constituted a covenant running with the land, meaning the new owner that obtained title through foreclosure was bound by the agreement. The second count alleged that the new owner and Miramar breached the agreement by failing to construct the pool and additional improvements.

Florida is home to countless condominiums, homeowners’ associations, and cooperatives. These types of residences can offer convenient and affordable ways to live, but they often come with a bundle of laws and regulations that the homeowner may not know about. Earlier this year, Governor Rick Scott signed HB 791 into law, a bill that provides a package of new laws that affect the aforementioned types of residents. Taking effect on July 1, 2015, the bill creates several new laws that change the way homeowners’ associations and condominiums can go about their business.

  1. The bill allows associations to conduct elections and other votes regarding membership electronically. The bill provides specific requirements that the association must use when setting up an electronic–or internet-based–voting system, including a board resolution approving electronic voting. An owner must be given the right to consent or opt out of electronic voting, and if they opt out the owner must be provided with a paper ballot.
  2. HB 791 amends the existing official records catch-all provision, providing that “all other records of the association . . . which are related to the operation of the association” are official records. Now, any non-written records like audio tapes or security camera footage are most likely not official records and therefore not available for owner review and inspection as a matter of right.

In the recent case of Wells v. Halmac Development, Inc., the plaintiffs contracted in 2008 for general construction work at their home located in Coral Gables. In the next year, the plaintiffs fired the general contractor, and the general contractor filed a lien against the property. The contractor later filed a lawsuit seeking to foreclose on the lien as well as seeking damages for unjust enrichment, breach of contract, and quantum meruit.

After the complaint was filed, the parties agreed to submit the matter to arbitration. The homeowners had also asserted claims against the contractor for misappropriation of funds and breach of contract, as well as a claim against the construction company’s president alleging a fraudulent lien.

In August 2011, the arbitrator concluded that the homeowners were entitled to recovery on the breach of contract claim and their claim for misappropriation of funds. The arbitrator also concluded that the contractor prevailed on his counterclaim to the homeowners’ fraudulent lien claim. Ultimately, the arbitrator concluded that there was no prevailing party in the matter for the purpose of awarding attorneys’ fees to a party.

In Hibbs Grove Plantation Homeowners Association, Inc. v. Aviv, a homeowners’ association accused a pair of homeowners of violating the community’s declarations by failing to remove mold and mildew from the exterior of their home. Two sections of the declaration covered mold and mildew. The first, Section 11, provided that appurtenances must be well maintained in “first class, good, safe, clean, neat, and attractive condition.” Additionally, Section 12.34 provided that any roof or exterior surfaces, along with the pavement, must be pressure treated within 30 days’ notice by the Architectural Control Committee. The association mailed the homeowners a demand letter identifying these alleged violations.

In response, the homeowners sent a letter to the association’s attorney, claiming that they had retained a contractor to take care of the pressure washing during the upcoming week. The parties did not communicate during the coming week, and the homeowners’ association sought an order compelling the homeowners to complete the power washing to remove the mold and mildew.

Two days later, the homeowners sent a letter to the homeowners’ association, attaching a copy of a receipt for the cleaning payment and photographs illustrating the cleaned walls. The homeowners then moved for a motion to dismiss the complaint, based on an alleged failure to state a cause of action. During the hearing on the motion, the court informed the association’s lawyer that if the association proceeded, and the homeowners had complied with the original demand, the court would assess costs and fees against the association. The court then denied the homeowners’ motion to dismiss, noting that a motion for summary judgment was the appropriate remedy.

In Haynes v. Arman, et al., the Fifth District Court of Appeal considered a real estate contract dispute involving easements and whether the lower court properly granted summary judgment for the sellers. In 2004, the buyer entered into an agreement to purchase a property from the sellers located in Oak Hill, Florida. The property was landlocked with no private access to a nearby road. As a result, the contract for sale included a number of easements for ingress and egress across the seller’s adjoining property. These easements were also included in the warranty deed that the sellers provided to the buyers.

The parties grew to dislike each other, and the sellers filed a lawsuit against the buyers in 2010. The sellers sought leave to amend their complaint some time later to add a claim for punitive damages. In 2015, the sellers filed a third amended complaint that included six causes of action:  fraudulent inducement, breach of contract, slander, trespass, unjust enrichment, and intentional infliction of emotional distress. The buyer did not hire an attorney for the litigation and filed what the appellate court described as a “rambling response” to the third amended complaint. The sellers moved for summary judgment, and the buyer filed a motion to dismiss. The trial court held a hearing on both motions and ruled in favor of the sellers, awarding $494,485.34 as compensatory damages, along with $1,483,456 in punitive damages and nearly $28,000 in attorneys’ fees and costs. The total judgment exceeded $2 million. The buyer appealed.

In a motion for summary judgment, the moving party must show that there are no material issues of fact and that the party is entitled to judgment as a matter of law. On review, the appellate court determined that the factual record was not “so crystallized that nothing remains but questions of law,” and the trial court committed error by granting a punitive damages award.

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