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  • Your Estate Plan Needs a Checkup

    Many aspects of estate planning is based upon the current laws in effect at the time you create your estate plan. Occasionally the legislature changes the laws and those changes can have negative consequences on your estate plan. To avoid the unintended consequences of an outdated estate plan you should consult on a regular basis with your trusted estate planning professional to make sure your plan is ready in the event it’s needed.

    Not to worry though, most changes enacted by the Legislature include grandfathering provisions to preserve those properly executed estate documents from losing their power simply based on a change in the law. One example of this was the 2011 changes to the durable power of attorney provisions. These changes removed the springing powers clauses in documents executed after October 1, 2011. There were several other changes as well, but there was also a grandfathering provision which protected those documents executed prior to the change. So long as they were lawful at the time, their power remains valid.

    There’s always a catch. With all of that said, certain documents are subject to acceptance by the person they are presented to. As banks and other financial institutions update their procedures and review process for certain documents they come to expect certain forms of documents. Presenting an outdated form to a bank may result in non-acceptance. In order to avoid any issues you should have your documents reviewed periodically.

    You can rely on the attorneys at Law Offices of Oates & Oates, P.A., to make sure your plan is complete. Call or email to schedule a consultation for your estate planning checkup.

  • Ladybird Deed: An Enhanced Life Estate

    How can I change title to a piece of real property to affect my estate plan and avoid probate, yet still maintain complete control over it during my lifetime, including the ability to un-do the transfer, and not just the right to occupy for as long as I am alive?

    Florida recognizes an enhanced life estate, otherwise known as a “Lady Bird Deed.” The name originates from the methods President Lyndon B. Johnson used to convey his property to his wife, ‘Lady Bird’ Johnson. The conveyance is one where the grantor reserves unto themselves full and complete control of the property, including the ability to un-do the transfer. In other words, the grantor doesn’t need the consent of the remainder interests as would be required by a traditional life estate. With a Lady Bird Deed, the original grantor can sell, use, mortgage, profit from, and otherwise deal completely with the property during their lifetime.

    In a traditional life estate, the remainder interests are contingent only on the life of the life tenant. The life tenant does not have complete authority to deal with the property. If needed, in order to un-do a life estate, the life tenant (original grantor) would need the signatures and consent of the remainder interests or beneficiaries.

    While this form of transfer has the same benefit as a life estate with regards to probate avoidance, it protects the grantor’s/life tenant’s ability to make changes should his or her circumstances change during their lifetime.

    A Lady Bird Deed is just one choice of many in a proper estate plan. A transfer of this nature requires very specific language for to be done properly and to avoid the creation of title issues and unintended consequences. Therefore you should consult with a knowledgeable attorney to consider what is right for you and your family. Part of our practice at Law Offices of Oates & Oates, P.A., includes counseling clients on their estate planning, probate, and real estate needs. Please contact our office to set up a time to review your estate plan.

  • Broward Associations: Acknowledgement and Rejection

    On September 10, 2013, the Broward County Commission voted to enact an amendment to its Code of Ordinances prohibiting discriminatory practices in real estate transactions. This includes Homeowner Associations and Cooperative Associations who review prospective purchase and lease applicants. The rules require that the association acknowledge receipt of a completed application within ten (10) days of submission. If the application package is incomplete, the acknowledgment letter must include a list of missing or incomplete items. Within forty-five (45) days after receipt of a completed application, the association must reject or approve the application and if rejected, must state the reason(s).

    Click to see the amendment to the code: Section 16 1/2-35.6 Required Notices in Connection with Application to Purchase or Rent Dwelling

    The existing ordinance contains all of the county’s non-discriminatory practices in real estate transactions. All real estate owners, managers and association boards would do well to review this ordinance from time to time.

    Click to see the entire Ordinance (prior to the amendment above): Section 16 1/2-35 (Discrimination in Real Estate Transactions)

    The Law Offices of Oates & Oates, P.A.’s practice includes real estate transactions, and is a licensed agent for Attorney’s Title Insurance Fund and Old Republic National Title Insurance.

     

  • Wrongful Evictions: A Guide for Landlords

    Link: Read more about this firm’s eviction services

    In the realm of landlord-tenant relationships, almost anything and everything can go wrong. When it does, landlords can protect themselves and their interests by understanding what is legally required for removing a tenant, and what constitutes “crossing the line.” With so much bad information being circulated about landlord-tenant laws, it is vitally important for landlord’s to comprehend the scope of their authority and how to handle problematic tenants, legally. If not, inexperienced landlords might find themselves unnecessarily defending against wrongful eviction claims. According to Sentry Water Systems, Inc., a wrongful eviction is “a wrongful act in he nature of a trespass…” Sentry Water Systems Inc., v. ADCA Corp., 355 So.2d 1255 (Fla. 2d DCA 1978).Wrongful evictions are directly tied to the tenant’s right of quiet enjoyment, which dictates that the tenant shall have the right to “peaceably and quietly enjoy the demised premises…” Barton v. Mitchell Co., 507 So.2d 148 (Fla. 4th DCA, 1987). This includes the right to be free of a landlord’s unwelcomed intrusion onto the tenant’s leased property. Id.

    As a landlord, understanding tenant’s rights is a crucial factor in avoiding wrongful eviction claims. Here are some examples of actions that are grounds for wrongful evictions claims. Landlord’s cannot, directly or indirectly, terminate or interrupt any utility service furnished to the tenant. These services include, but are not limited to, water, heat, light, electricity, gas, etc…(See Florida Statute §83.67). Landlords cannot change locks to prevent tenants from accessing the premises. Id. Furthermore, retaliation of any kind by a landlord based on the conduct of a tenant is will be closely scrutinized, and may be grounds for a wrongful eviction claim by the tenant. (Florida Statute § 83.64). Wrongful eviction claims allow a tenant to bring a claim against a landlord for statutory damages plus recovery of their attorney’s fees.

    There are, however, three clearly delineated circumstances where a landlord will have cause to remove a tenant. (Florida Statute § 83.20). A landlord may remove a holdover tenant; one that continues to occupy the premises after the expiration or termination of the tenancy and without the landlord’s permission. Id. Landlords may remove tenants that default in the payment of rent pursuant to the agreement, after providing adequate notice of the required payment. Id. Lastly, tenants that fail to cure a material breach of the lease agreement after of receiving notice of breach from the landlord and an opportunity to cure, may be removed from the premises. Id. This article is but a short overview of wrongful eviction laws in Florida that may aid landlord’s in better understanding the options that are available to them when dealing with problem tenants.

    If you are a landlord in need of assistance with a residential or commercial tenant from lease to eviction, the attorneys at Law Offices of Oates & Oates, P.A., can assist you.

    Jason Abitbol is a graduate student pursuing a Juris Doctorate degree at Nova Southeastern University College of Law in Fort Lauderdale, Florida. He is a law clerk for the Law Offices of Oates & Oates, P.A.