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Category: Real Estate

  • Broward Residential Evictions Restart June 3, 2020 (Extended to August 1, 2020)

    Update: June 30, 2020 at 8:10 p.m. Governor Desantis issued executive order (20-159) extending Executive Order 20-94 (as extended by Executive Order 20- 121) until 12:01 a.m. on August 1, 2020. We are still experiencing issues with the clerk’s office refusing to issue writs and some judicial divisions not signing orders for obtaining judgments and writs on non-residential evictions and those not involving non-payment issues.

    Update: June 1, 2020 at 7:06 p.m. Governor Desantis issued an executive order (20-137) extending Executive Order 20-94 (as extended by Executive Order 20- 121) until 12:01 a.m. on July 1, 2020. This extension applies to residential properties for non-payment of rent. The Federal Cares Act legislation also remains in effect. Commercial Evictions and residential evictions that are not based on a termination for non-payment of rent are not affected by the Governor’s extension.

    On May 28, 2020, the 17th Judicial Circuit’s Chief Judge, Hon. Jack Tutor, issued Amended Administrative Order (AO) 2020-39-CO / 2020-40-Civ (Defaults, Writs of Garnishment, and Evictions and Writs of Possession).  The order reopens residential eviction proceedings in Broward County.

    Effective June 3, 2020, the Clerk of the Court will begin processing defaults and issuing writs of possession as permitted by law. The AO further suspends the Rule 1.580(a) “forthwith” requirement, meaning clerks are not required to expedite the issuance of said writs. The AO adds a new requirement that residential landlords must file a verification of compliance with the Cares Act which is still in effect until July 25, 2020 (120 days from March 27, 2020). Please refer to our prior blog article (click here) for more information about the specifics of the Cares Act.

    The verification of compliance with the Cares Act requires that the Plaintiff sign a verified statement as to the following facts:

    • The Plaintiff is not a multifamily borrower currently receiving a forbearance under the Cares Act for the property which is the subject of the eviction.
    • The eviction is for a reason other than nonpayment of rent
    • The action involves a commercial property, or does not involve a rental property that participates in federal assistance programs, and is not encumbered by a federally backed mortgage loan.

    The verified statement is in the nature of an affidavit, although does not require notarization. It contains an acknowledgment that “any material misrepresentation could cause … prosecution of a separate criminal law violation” and shall be signed under penalty of perjury. The verification cannot be signed by the filing attorney or property manager, it must be signed by an owner or an officer of the owning entity.

    For the entire text of the order please follow this link (2020-39-CO_2020-40-Civ_amended). The full AO contains a written definition of “covered dwelling” and the form of the verified statement that must be filed. The provisions of this AO apply to any residential eviction case based on non-payment filed on or after March 27, 2020, and shall automatically expire on July 28, 2020, unless amended or extended.

    The purpose of this article is to provide you a summary of the most up-to-date information available concerning developments concerning landlords in the State of Florida and more specifically, in Broward County. The author will attempt to keep this article up to date with additional information as it becomes available, but as the current state of affairs is a constantly evolving and fluid situation, you should refer to the sources cited herein for specific information. This is not intended to be a substitute for proper legal advice based on your specific facts and circumstances.

    A portion of our practice at Pompano Law is the representation of commercial and residential property owners. If you are a property owner in need of legal counsel, please feel free to reach out to us.

     

  • Eviction Orders: Florida’s Local, State and Federal Moratoriums

    Updated: May 29, 2020. This information has been superseded by a recent Administrative Order. Please click here to see our latest blog article with updated information, including the latest Administrative Order restarting residential evictions in Broward County.

    Updated: May 15, 2020 at 7:00 pm.

    On March 27, 2020, President Donald Trump signed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) into law. The law includes a federal eviction moratorium for residential tenants living in certain types of housing as summarized below.

    Under the provisions of the new law, residential landlords are restricted from filing new evictions for non-payment of rent, and prohibits “charg[ing] fees, penalties, or other charges to the tenant related to such nonpayment of rent.” §4024(b).

    The Act does not affect cases:

    1. that were filed before the moratorium took effect or that are filed after it sunsets
    2. that involve non-covered tenancies (see below), or
    3. where the eviction is based on another reason besides nonpayment of rent or nonpayment of other fees or charges.

    What types of housing are covered by the federal eviction moratorium?

    The eviction moratorium applies to “covered dwellings,” which includes those dwellings on or in “covered properties.” Section 4024(a) of the Act defines a “covered property” as a property that:

    1. participates in a “covered housing program”
    2. participates in the “rural housing voucher program;
    3. has a federally backed mortgage loan; or
    4. has a federally backed multifamily mortgage loan.

    The Act defines a federally backed mortgage loan as that which is “in whole or in part, or insured, guaranteed, supplemented, or assisted in any way, by any officer or agency of the Federal Government or under or in connection with a housing or urban development program administered by the Secretary of Housing and Urban Development or a housing or related program administered by any other such officer or agency, or is purchased or securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.” The National Housing Law Project, reports that about 70 percent of mortgages for single-family homes are federally backed.

    How long is the federal eviction moratorium in effect?

    The federal eviction moratorium took effect on March 27, 2020 and extends for 120 days.  Landlords that receive forbearances of federally backed multifamily mortgage loans must respect identical renter protections for the duration of the forbearance. §4023(d). Furthermore, the Act requires that Landlords of a covered dwelling may not require the tenant to vacate before the date that is 30 days after the date on which the lessor provides the tenant with a notice to vacate; and may not issue a notice to vacate until after the expiration of the moratorium.

    On April 2, 2020, Florida’s Governor Ron DeSantis signed Executive Order 20-94 (Emergency Management – COVID-19 – Mortgage Foreclosure and Eviction Relief). The Order suspends and tolls any statute providing for an eviction cause of action under Florida law for 45 days from April 2, 2020, as it relates to non-payment of rent by residential tenants. The Order has the effect of suspending any notice for non-payment such as a three-day notice or other notice to pay rent or quit. Governor DeSantis, speaking in advance of the issuance of the Order, stated that it does not relieve an individual’s obligation to make rent payments, but is intended to provide “targeted, temporary relief from certain … evictions for 45 days.”

    Updated: On May 14, 2020, Governor Desantis signed Executive Order 20-114 extending the 20-94 from May 17, 2020 until 12:01 a.m. on June 2, 2020.

    Broward County’s Seventeenth Judicial Circuit, overseen by Chief Judge Jack Tutor, has also issued an Administrative Order (AO) (Administrative Order 2020-27-Temp (IV)(F)) which provides new rules in Broward County concerning defaults and writs of possession. The AO states that until the Courts resume normal operations, in all county and civil cases:

    1. No default shall be entered by the Clerk of Court; and
    2. No court default may be sought unless submitted by motion to the presiding judge detailing exigent circumstances which may warrant judicial relief. In the event the presiding judge is unavailable, the matter shall be presented to the Administrative Judge of the County Court or the Administrative Judge of the Circuit Civil Division, as appropriate, and if either are unavailable, to the Chief Judge.
    3. No writs of possession may issue until normal operations of the court resume.

    Updated: On April 6, 2020, Broward County’s Chief Judge for the 17th Judicial Circuit issued a  suspension of normal operations through May 29, 2020 (AO 20-32-Temp) which conforms with the Florida Supreme Court’s Administrative Order No. AOSC20-23 (In Re: Comprehensive COVID-19 Emergency Measures for the Florida State Courts, extending state court COVID-19 emergency procedures through the month of May).

    Do these orders affect commercial evictions based on non-payment of rent? 

    It is important to point out, that Broward County’s Administrative Order does not differentiate actions for possession based on a commercial or residential tenancy as does the State and Federal Orders.

    Update: The Broward County Sheriff’s office maintains their temporary suspension of writ enforcement with the following statement, “the Broward Sheriff’s Office, in coordination with the 17th Judicial Circuit, has decided to temporarily cease all eviction activities until further notice due to the current public health crisis.” This suspension does not differentiate between residential and commercial writs.

    The purpose of this article is to provide you a summary of the most updated information available concerning developments concerning landlords in the State of Florida and more specifically, in Broward County. The author will attempt to keep this article up to date with additional information as it becomes available, but as the current state of affairs is a constantly evolving and fluid situation, you should refer to the sources cited herein for specific information. This is not intended to be a substitute for proper legal advice based on your specific facts and circumstances.

    A portion of our practice at Pompano Law is the representation of commercial and residential property owners. If you are a property owner in need of legal counsel, please feel free to reach out to us.

     

     

  • Closings on Track with Technology Assist

    We are receiving a lot of questions from our clients asking if we are still doing closings on purchases and refinances and whether we conduct eClosing and electronic signing. With the current state of Covid-19 related restrictions and closures it has been a challenge but not impossible to keep closings on track. We continue to process our closings and use all of the latest technologies to assist our clients. While we have adopted and continue to use technologies including electronic signing, eClosing and Remote Online Notary (eNotary), we are finding that whether we can utilize these services depends a lot on the lender’s adoption.

    Some lenders are accepting limited electronic signatures. We refer to this as a “hybrid closing” when the lender will accept only some portion of the electronic signing technologies available in Florida. In a hybrid situation, certain documents can be pulled for wet signatures and the remainder are signed electronically. Only a very few lenders have fully adopted eClosing, eMortgage and eNote formats for their lien and note documents. Unfortunately, a majority of lenders we currently have closings with require attended closings or wet signatures on all documents. However, we continue to work with all lenders and process each file per their requirements. We recognize that some of the adoption of these new technologies are limited because of their secondary market restrictions.

    In short, we continue to accommodate closings for purchases and refinances. The vendors we work with for lien searches, surveys and title work have been hard at work assisting in getting across the finish line with our closings. If you are considering a purchase or sale, or want to take advantage of the lower interest rates, make sure you tell your lender or real estate professional that you want Pompano Law to help with your closing.

  • Marriage Penalty Removed for Conveyances Between Spouses

    Question: My wife and I purchased a property before we were married. How can we protect the property now that we are married in case something happens to one of us?

    This is a question that we are asked frequently by our clients. Married couples in the State of Florida take title to property as tenants by the entireties (TBE). The generally accepted language for taking title is “John Doe and Jane Doe, husband and wife.” Under Florida Law this implies TBE and offers the protections from creditors of one or the other spouse in addition to constitutional protections if the property is a principal residence.

    When you purchase a property prior to marriage you take title as co-tenants (similar to a partnership). The default language for taking title between non-spouses is “John Doe and Jane Doe” or “as co-tenants.” Under Florida Law this assumes each owns fifty percent of the property. This has certain implications for survivorship and devise, especially if the heirs of each of the co-tenants is not the same. There are other ways to hold title between non-married individuals such as “joint tenants” which are outside the scope of this article.

    In Florida, we have no State income tax, but we collect other taxes such as sales and use tax and conveyance taxes on the transfer of real property; called documentary stamp taxes (also referred to as doc stamps). These doc stamps are calculated on the consideration of the transfer or the amount of any mortgage or other indebtedness encumbering the property.

    Prior to July 1, 2018, a married couple could correct the title to property to reflect their holding title as a married couple (TBE) without a conveyance tax, if the transfer was done within one year of the marriage. Outside of that, there was the potential for doc stamps on the consideration.

    Recently, the Florida Legislature has fixed this “marriage penalty” by allowing a married couple to transfer property between themselves without doc stamps. Seems fitting since there was already an exemption for transfer tax subsequent to a dissolution of marriage. Real estate law practitioners had been lobbying the legislature to make this fix for many years. If you want to read the specifics you can review Section 201.02, Florida Statutes (2019).

    A real estate attorney is your friend when it comes to issues like this. There are too many ways to create inadvertent title issues with the use of an online or office supply store form. Rarely do the forms give accurate advice to make sure your conveyance conforms with Florida Law. If you need help with fixing the title to your property to make sure it reflects a subsequent marriage, please get it touch with our office.

    This article is one in a series based on questions we frequently get from our clients. It is accurate as of the date of publication, however the law changes. You should rely on the advice of a knowledgeable attorney in order to make sure you are getting the most up to date information.

  • FinCEN GTO Expansion

    The Financial Crimes Enforcement Network (FinCEN) recently issued an expansion to their Geographic Targeting Orders (GTO) that will temporarily require certain U.S. title insurance companies to identify the natural persons behind companies used to pay all cash for high-end residential real estate in Broward and Palm Beach Counties. This is an expansion of the previous GTO which was limited to Miami-Dade County. The US Treasury Department credits the GTO for “are helping law enforcement identify possible illicit activity and informing future regulatory approaches.” The expanded rules will require title insurance companies to collect and report personal information behind individuals and corporate buyers paying all cash for high-end residential real estate. The purchase price reporting limited is above $1,000,000 in Broward, Palm Beach and Miami-Dade. The GTO will be in effect from August 28, 2016, and continue for 180 days. FinCEN has identified all-cash high end residential purchases as particularly vulnerable to money laundering. The reporting will not be required for those purchases with external financing.

  • Due Diligence for that Assignment of Lease

    A portion of our practice includes business transactions and frequently involves buying and selling businesses and other asset sales which include the assignment of a leasehold interest. In fact, for many businesses the leasehold interest (the lease) is one of the most valuable assets being sold. Everyone assumes that if the asset sale involves the conveyance of real property then a title search and owner’s policy for title insurance would be issued as part of the sale to ensure that the property is not encumbered by a mortgage, lien or other restriction. But what due diligence should be done for those sales including the assignment of a lease?

    Perhaps a short analogy would better illustrate the point. Let’s assume you are buying a restaurant. You know the restaurant industry well and have reviewed the financials of the restaurant and see a strong balance sheet and cash flow. You can see from the expenses that much of the net profit is due to the below market rent and it seems like there is a substantial term left on the lease, perhaps even an option to extend.  You close on your purchase and come to find out the landlord is in foreclosure. Will the foreclosure affect your new business? Do you risk losing your business if the property is sold at foreclosure?

    While negotiating an assignment of the lease in this age of foreclosures it is imperative that you do a little extra due diligence. Florida is a judicial foreclosure state. We are also a notice state. A lender seeking to foreclose a property must file a lis pendens as part of their foreclosure filing. The purpose of the lis pendens is to put the world on notice of the pending action for foreclosure. It also establishes the priority of interests.

    Before you close on your next asset sale you should make sure the due diligence you are doing includes the review of the public records for instruments like a lis pendens which may ultimately affect your lease. It is important that you obtain and rely on knowledgeable counsel to make sure you are protected. The attorney’s at Law Offices of Oates & Oates practice in the areas of business transactions and real estate. Please let us know whether we can assist in your next purchase or sale.

  • 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.

     

  • Real Estate Closing Costs

    Real Estate Closing Costs

    Closing costs are those costs associated with your real estate transaction which are in addition to the purchase price and are typically bourne by either the buyer or seller depending on the terms of the purchase agreement or the tradition in the county in which the property is located.

    Buyer Closing Costs (typical)

    Buyer’s closing costs can vary depending on whether there is financing involved or not. Federal legislation requires that lenders give you a Good Faith Estimate (GFE) of typical costs associated with a “typical” transaction. Because many lenders make loans in multiple states and they err on the side of over-estimating to avoid having to re-disclose prior to the closing; you should always check with your real estate attorney for the ultimate determination of what your closing costs will be according to your purchase agreement and local custom. Buyer’s closing costs may include (some are optional):

    • Earnest Money Deposit
    • Appraisal
    • Loan fees (points, application fee, credit report)
    • Inspection fees
    • Prepaid interest
    • Mortgage insurance
    • Hazard insurance (homeowners and/or windstorm)
    • Title insurance (Mortgagee and/or Owners)
    • Documentary stamps on the note
    • Broker transactional fees

    Seller Closing Costs (typical)

    Seller’s largest closing cost will be the payoff of the existing mortgage, if any. Outside of that, Sellers will typically pay for the following:

    • Property taxes (prorated)
    • Documentary Stamps on the Deed
    • Broker’s commission
    • Title Insurance (Owners Policy, if by contract or local      custom)
    • Documentary Stamps on the Deed
    • Title insurance
    • Broker Transactional Fees

    Can I Negotiate Closing Costs?

    In addition to the sales price, buyers and sellers can negotiate which closing costs they are responsible for. Example: Buyers can ask for specific costs to be paid by Seller or simply agree to a credit from Seller to Buyer for unspecified closing costs.

    Do you need a real estate attorney to assist you with your transaction? The Law Offices of Oates & Oates, P.A., can represent your interests and ensure your transaction goes smoothly. Call us today for more information on how we can help you. (954) 942-6500 extension 3.