It’s a common practice for residential landlords to use a boilerplate lease as a contract between them and their tenants. These generic forms are readily and cheaply available online, and most of them do cover the minimum requirements for a legal lease agreement. Unfortunately, they often fail to cover some specific points that can provide much more precise terms and better legal protection for property owners, while observing the rights of the tenants under state law.

Are The Terms Of Your Lease Enforceable?

Typically, landlords want to make a lease agreement that favors protecting their own interests, but not every term you include in such a contract is legally enforceable. For example, you may be allowed to specify fees for late payment, but they have to be kept within what courts consider to be reasonable limits. Having an experienced real estate attorney draft your residential lease ensures that your terms are within Florida’s legal limits, while providing you with the best protection possible.

Does Your Lease Cover The Specific Circumstances? 

Generic lease forms are designed to cover the most common conditions encountered in leasing a home to tenants. Every tenancy and every property is unique, and it’s in your best interest as a landlord to make a lease agreement that covers issues that may arise with each specific property and tenant. For example, if you’re leasing out a home with solar panels, which are not typically mentioned in a generic lease, whose responsibility is it to keep them clean and maintained? What if the tenants plan to bring their own aboveground hot tub? Does the lease specify that they’re responsible for any damage to the electrical or plumbing systems, or due to leaking water from their hot tub?

Use A Residential Lease That Covers Your Assets 

The real estate lawyers at Overstreet, Miles, Cumbie & Finkenbinder are thoroughly knowledgeable in Florida landlord/tenant law, and they can help you draft a residential lease that is the right fit for your property and tenant situation. Give us a call or contact us online to schedule a consultation and review of your residential lease, and we’ll work with you to effectively protect your rights and property.

Sometimes, homeowners want to consider the idea of adding a family member or someone else to the title deed of their property. Often, this notion is based on the idea that making that person an owner of the property now will help make succession easier later on. While that may be true in some cases, there are significant risks and liabilities associated with adding someone’s name to your property deed.

Potential Loss Or Reduction Of Homestead Exemption 

The Florida State Constitution, Article X, Section 4, exempts properly designated homestead property from forced sale under process of any court. This exemption was created to prevent people from losing the homes they live in to creditors and allows homestead property to be transferred to your spouse and/or children free from creditor claims upon your death. If the person you add to the deed for your primary residence does not live there (for example, an adult child), your homestead exemption is reduced by half, because there are now two owners, but only one of them resides in the house. Adding a non-resident to the title weakens your Homestead Exemption protection.

Financing & Tax Issues

 If your home is mortgaged or you’re using a HELOC (Home Equity Line Of Credit), you may discover that it violates the terms of that mortgage or HELOC to transfer interest in the home to another person by adding them to the property deed. Even in cases where the lender allows such a transfer, you may owe money for new documentary stamps. If you later want to sell or refinance the house, you will need signatures from every person named on the property deed. If your co-owners don’t agree to the sale or refinance, you’re either going to be stuck, or facing the prospect of taking them to court. Finally, it is likely that the person you add to the property deed will ultimately pay more income tax when the property is sold after you are deceased because they lose the stepped-up tax basis they would have had if they’d inherited the property through probate or a trust.

Potential Liability

When you add someone to the property deed of your home, the home becomes that person’s asset, in addition to being yours. That means that if your new co-owner files bankruptcy or has a judgment filed against them by a creditor, the house is an asset that can be encumbered by their creditors, despite the fact that it’s your primary residence.

Keep Your Homestead Exemption Protection Intact

The relative simplicity of adding your heir’s name to the property deed for your home may seem appealing, but for most people, it’s not the best solution. The real estate attorneys at Overstreet, Miles, Cumbie & Finkenbinder can help you find the option that best protects you and your assets now, and eases the cost and hassle of succession for your heir later on. Call us or contact us online for a consultation, and learn more about your options.

“What are my closing costs” is one of the most common questions when buying and selling real estate. While the sale contract breaks down the list of closing costs, fees, and charges for each party, it remains of the most mysterious sections of the contract. That’s because the elusive “closing costs” vary based on the sales price of the property, the type of loan you choose, and the state or county where the property is located.

Typical Closing Costs For Sellers:

  • Applicable Documentary Stamp Taxes
  • Owner’s Title Policy and Charges (depending upon contract terms)
  • Municipal Lien Search
  • HOA/Condo Estoppel Fees
  • Recording and any other fees required to provide marketable title
  • Seller’s Attorney Fees

Typical Closing Costs For Buyers:

  • Documentary Stamp & Fees On Promissory Notes
  • Recording Fees For Deed & Financing Statements
  • Owner’s Title Policy and Charges (depending upon contract terms)
  • Property Survey, if Required
  • HOA/Condo Association Transfer/Application Fees
  • Municipal Lien Search
  • Loan Costs like origination, appraisal, inspection, and credit reporting fees
  • Buyer’s Attorney Fees

Why Are Some Fees Listed Twice?

In some cases, the fees are negotiable, either in terms of who pays them, or in terms of the amount to be paid. In general, sellers pay all the fees required to remove any encumbrances on the title and their own legal costs, while buyers pay the fees associated with financing and transferring the property title. The party paying for the title insurance chooses the closing/title agent, which gives some measure of control over that cost. However, many of the fees are regulated by state law, such as title insurance premium, documentary stamp taxes, and recording costs, will not change.

Having a real estate attorney on your side can help you negotiate a more favorable result and gives you added protection against surprises, like finding a previously undetected encumbrance on the property or learning after the transaction is over that there are zoning or land use controls that prevent you from using the property the way you wanted to.

Keep Closing Costs To Your Fair Share

When you work with the real estate attorneys at Overstreet, Miles, Cumbie & Finkenbinder, you place yourself in a better position to negotiate your fair share of closing costs and can rest assured that your real estate purchase contract is not going to come back to bite you later. Call or contact us online to schedule a consultation, and we’ll let you know how we can help in your specific transaction.

The Florida Documentary Stamp Tax is imposed on documents transferring an interest in real estate, but in many cases, people are unaware of this tax and how it may apply to their real estate transaction, and they’re surprised with an unwelcome extra expense when it comes time to record the property deed. Interest and penalties for not paying this tax are steep, so it’s critical to understand and plan for documentary stamps.

When Does The Documentary Stamp Tax Apply?

The document stamps are actually an excise tax on the documentation that transfer interest in real property and written obligations to pay. Therefore you’re paying tax on the property deed, the mortgage, or some other kind of promissory note. Documentary stamps are typically paid at the time the document is recorded. But unrecorded documents may also be subject to the tax, unless the transaction or party is exempt.

For transactions that don’t involve financing, the Document Stamp Tax for recording the property deed in most counties is 70 cents per $100 of the sales price (known as consideration). This includes quit claim deeds between spouses and family members.

For financed transactions, the documentary stamp tax is 35 cents per $100 of face value on the note; the tax is based on the amount financed, not the selling price. There is an additional “Intangible Tax” of 20 cents per $100 financed, which has to be paid before the mortgage is recorded.

Examples of Documents Subject to Tax:

  • Deeds (e.g., warranty, special warranty, quit claim, trustee’s deed, life estate deed)
  • A document that transfers property between spouses
  • Agreement/Contract for Deed
  • A document that transfers a mobile home as real property
  • An assignment of a leasehold interest in real property
  • Certificate of Title
  • A document that transfers a cemetery lot or interment rights
  • A deed in lieu of foreclosure

When Do Exemptions Apply?

Some exemptions apply to the Document Stamp Tax including:

  • When a property owner wants to transfer ownership from their personal assets to a Limited Liability Corporation they own;
  • When property is transferred between spouses and there is no mortgage;
  • In certain cases of property being transferred into a trust;
  • Or between ex-spouses for up to a year after their divorce becomes final.

Need Help With Documentary Stamp Tax?

The real estate attorneys at Overstreet, Miles, Cumbie, and Finkenbinder are highly experienced in dealing with the intricacies of the Florida Documentary Stamp Tax laws. Give us a call or contact us online, and we’ll schedule a consultation appointment and let you know how we can help!

When you are involved in a residential or commercial real estate transaction in Florida, it’s important to understand what a real estate attorney can to do to actively protect your interests, prevent mistakes, and solve issues that could delay your closing. Working with a real estate attorney helps you stay on top of all the details of your life-changing investment and makes your transaction as painless as possible.

Find & Resolve “Hidden” Issues

When you purchase real estate, a title agent will search the property title for things like liens, and verify that the seller is the rightful owner, entitled to sell you the property. The results of this search are provided to the parties in a title commitment, which is one of the most important documents in the closing process. The vast majority of buyers do not know what a title commitment is and therefore don’t bother to review it. Hiring a real estate attorney to review the title commitment can alert you to issues before you purchase the property. In many cases they can help resolve these issues before the closing. Otherwise, you may not be aware of title issues that could cost you money later on: Issues like liens, easements, or deed restrictions. A real estate attorney can serve as the title agent too. 

Gain A Clear, Accurate Understanding

 Real estate contracts are incredibly complicated, and it’s critical that you understand everything you’re committing to, both rights and obligations, before you sign. When you hire a real estate attorney to review the documentation and contract for your potential purchase, you add a layer of protection and peace of mind. Your real estate attorney will review all the terms and contingencies, explain anything you don’t understand, and advise you if they find issues that work against your best interest. Another benefit to having an attorney review the title and contract is that they can let you know if there are any land use controls or zoning issues that could affect your future plans for the property.

Added Protection For Short Sales & Foreclosures 

Short sales and foreclosures can offer buyers excellent value, but that value is not without risk. When you’re dealing with bank-owned property or property that the lender has agreed to allow to be sold for less than the seller owes, there are some potential pitfalls. Hiring a real estate attorney helps ensure that you’re not stuck in a situation where the seller doesn’t actually have the lender’s permission for a short sale, or the lender is able to come after you for the shortfall later, or you’re dealing with liens or other encumbrances that transfer with the property title.

Experienced Real Estate Attorneys In Florida 

The real estate attorneys at Overstreet, Miles, Cumbie & Finkenbinder are highly experienced in helping Florida real estate buyers and sellers protect their interests and investments. Call us or contact us online for a confidential consultation, and we’ll let you know what to expect and how we can help!

Sometimes it becomes necessary to remove a person’s name from a property deed. This often happens in cases of divorce or death. Although it might seem like removing someone from a deed would be a simple process, it’s actually a complicated matter that is best left to a real estate law attorney.

Deeds of Conveyance

A deed establishes the legal owners of a property. Whoever is named on the deed is considered the owner of the property. In order to change legal ownership of a property, it must be transferred, or conveyed, by the owner to another person through a deed of conveyance.

There are two types of deeds of conveyance: quitclaim deeds and warranty deeds, but which one is better suited for the transaction depends on how the property is held and the purpose of the change in ownership.

Both quitclaim deeds and warranty deeds indicate that the seller/grantor has ownership of the property and a right to transfer their ownership to the buyer/grantee, but they do not provide similar levels of assurance. Quitclaim deeds provide no assurance that there isn’t another person who may also have claim to the property. This makes them a riskier choice in most situations.

Warranty deeds, on the other hand, do provide explicit assurance to the buyer/grantee that there aren’t any other people with claim to the property. That’s why warranty deeds are the most commonly used deed in typical real estate transactions.

Ownership Type Affects Deed Choice

Property can be owned by multiple parties or title may be held in different ways that affect the ownership rights. The type of property ownership determines how the property may be transferred via deed. Types of property ownership include:

  • Sole Ownership. One person owns the property.
  • Joint Tenancy. More than one person owns the property.
  • Rights of Survivorship. More than one person owns the property and each is entitled to inherit an equal share upon another owner’s death.
  • Tenants in Common. More than one person owns the property but none of them inherit any shares upon the death of another owner.
  • Tenancy by entirety. Two people own the property. They inherit each other’s shares upon the other person’s death.

Best Deed Choice Per Property Type

In general, warranty deeds are better in situations with multiple owners, in transactions between strangers, when money changes hands, and in any situation where the buyer wants assurance that the property is free from the ownership interests of other parties.

Quitclaim deeds are a better choice when property is being transferred between family members and no money changes hands. A good is example is siblings inheriting their parent’s property. A quitclaim deed can be used to establish the children as the new owners of the property by removing the deceased parents’ names from the deed. See our blog on additional consideration when using quitclaim deeds

Removing Names From Deeds Is Best Accomplished With Legal Assistance

There are several requirements that must be followed in order to legally remove someone’s name from a deed. Deeds are only valid if they are properly executed and delivered. In Florida, they should also be recorded with the local county clerk’s office.

Both types of deeds must name the grantor and grantee, include the date of transfer, the reason for the transfer, a legal description of the property, and the form of ownership, to name just a few of the requirements. They must also be signed in front of a notary public.

As you can see, transferring property is a complicated process in Florida and a misstep at any point in the transaction can invalidate the deed and impact the legal ownership of the property. In some cases, do-it-yourselfers have found themselves in trouble later on because there was a simple error on the deed.

A real estate attorney can ensure all processes are followed correctly and the new deed is valid, establishing proper legal ownership. Contact a real estate attorney at Kissimmee’s Overstreet, Miles, Cumbie & Finkenbinder, P.A. for advice on removing someone’s name from a deed or any of your other real estate law questions.

Call 407.847.5151 to arrange a consultation.

Deciding to buy a home is the largest investment most people make in their lifetime. Unfortunately, many homebuyers do not understand the terms of the paperwork they sign in the process. If homebuyers aren’t savvy, they can end up among those facing legal disputes over home purchases. Here are 3 ways to protect yourself from common pitfalls:

  1. Don’t Take Your Purchase Offer Lightly.

When you submit an offer on a home, you are agreeing to enter into a legally binding contract (if the seller accepts). While there may be contingencies that allow you to terminate the contract, once signed, it can be difficult and expensive to get out of.

A real estate agent can help you fill out a standard offer contract. It is wise to also have a qualified real estate attorney review the offer before it is submitted. A real estate attorney can advise you on your legal rights and obligations under the purchase offer and help you change the terms to best protect you.

  1. Take Advantage Of The Inspection Period.

This is one of the most important steps in the transaction. The Inspection period begins as soon as the seller accepts your offer, allowing you a set number of days to complete the inspection and determine whether you will move forward with the home purchase. While a seller must legally disclose any “known defects” to a buyer, in Florida it is the homebuyer’s responsibility to have the home inspected to discover any issues that may be present in the home.

Hire a qualified home inspector. A home inspection may reveal defects that change your decision to purchase the home and save you from costly repairs.

  1. Don’t Forego Title Insurance.

As part of the real estate transaction, a title agent or real estate attorney will complete a title search to review the “title” to the property that is being purchased. They will ensure that the property is free from encumbrances, liens and defects. The title agent or real estate attorney will then issue a title insurance policy insuring that it will compensate the insured if a defect, lien or encumbrance is uncovered later. Common title issues include unknown liens, deed fraud and boundary disputes. Don’t leave your property at risk, purchase title insurance.

Jennifer R. Bondy
Partner
Overstreet, Miles, Cumbie & Finkenbinder P.A.

Title insurance is a specialized insurance policy that protects buyers and lenders against claims that may arise over the title of a piece of property. The policy is a one-time purchase that remains in effect for the duration of ownership, so if, for example, your children inherit your home, the title insurance coverage would continue to insure the property.

Why Would There Be Claims Against The Title Of My Property?

When you purchase real estate, part of the process is detailed research into the public records pertaining to that property. That search should reveal any type of encumbrance on the property including:

  • Tax or contractor’s liens
  • Claims of ownership by heirs
  • Ex-spouses
  • Creditors of previous owners
  • Easements that restrict your ability to build on a portion of the property

In certain cases, these encumbrances may not be discovered through the research process at the time of purchase, and those surprises called hidden risks, are precisely what title insurance protects against. Your owner’s title insurance policy obligates the title company who issued it to defend your title at their cost and to compensate you for any lost value of the property that arises from such a claim.

Am I Required To Have Title Insurance?

While there is no real estate law requiring you to carry title insurance, most mortgage lenders will require that the property be covered by both a lender’s title insurance policy, and an owner’s policy may be offered by the seller as part of your real estate contract. If you’re purchasing real estate with cash, you are not required to buy title insurance, its sound business practice to protect yourself and your investment by buying a policy or requesting the seller pay the cost of the policy.

Who Pays For The Title Insurance Policies?

Ultimately, the party responsible for buying the title insurance policy is determined by the sales contract. There are different customs that vary by county, for example, in Sarasota, Collier, Broward, and Miami-Dade counties, the seller typically pays for the title search, while the buyer pays for the owner’s policy, while in Palm Beach County, the seller usually pays for both.

It’s also important to note that the party paying for the policy selects the title agent, and you may wish to use a real estate attorney to serve as the title agent.

The real estate lawyers at the Kissimmee Law Firm of Overstreet, Miles, Cumbie & Finkenbinder can help you understand the title insurance process and walk you through the specifics of negotiating a fair sales contract. Call us at 407-847-5151 for a confidential consultation.

Property deeds are used to transfer ownership from one party to another. There are two basic types of property deeds in Florida: a Warranty Deed and a Quit Claim Deed. The two offer different levels of protection for the new owner with the Warranty Deed providing better protection, but many people opt to use the Quit Claim Deed to transfer property, particularly if the transfer occurs between family members.

Even with a familial connection, quit claim deeds raise many concerns and, when not executed properly, can lead to serious repercussions over the short- and long-term.

Cautions Regarding Quit Claim Deeds

Quit claim deeds do not require the property to undergo a title review or attorney review, which means there is no third-party verification that the title is free and clear of liens or that the one transferring the property title has the right to do so or if there will be tax implications for either party.

Failing to have a real estate attorney review the entire transfer process can have many different consequences for both the grantee and the grantor, such as:

  • Documentary Stamp Taxes. Any Florida property that has a mortgage on it is subject to tax when ownership is transferred, even if the transfer occurs between spouses.
  • Capital Gains Taxes. The transfer of property subject to a mortgage is also subject to Capital Gains Taxes per IRS rules. In some cases, a gift of real property can also be subject to Capital Gains.
  • Florida’s Homestead Tax Exemption. It is possible to lose this exemption when ownership changes, depending on who claims it, when they claim it, and who qualifies to take the exemption.
  • Florida’s Save Our Home Cap: Amendment 10. This amendment affects the state Homestead Tax Exemption. The Cap can be lost in certain circumstances, even if the Homestead Tax Exemption is retained.
  • Gift and Estate Taxes. It is possible that a transfer of deed could be interpreted as a gift and be subject to gift taxes and might affect an owner’s estate taxes.
  • Generation-Skipping Transfer Tax. This tax might be required if the grantee is two or more generations younger than the grantor.
  • Non-Citizens. Gifts, transfers, and property sales to non-citizens are subject to their own gift, estate, and capital gains tax implications.
  • Probate. In order to avoid Florida probate the property must be transferred in a certain way. If it is not transferred properly, or if there are any problems with the deed itself, the property will have to go through probate.
  • Challenges. If a property transfer has the effect of disinheriting someone or placing undue hardship on the owner’s spouse or dependents, it can be challenged in court. In some cases, constitutional restrictions on the deed can create a title defect.

These are just a few of the possible complications that can arise during a property transfer, even if the transfer is amicable, within a family, and no money changes hands. Although they appear to be a simple solution to a simple property transfer, quit claim deeds can be anything but simple, creating problems where there were none prior.

It is always advisable to consult a real estate attorney or estate planning attorney when real property conveyance is required. These professionals will be able to examine not only the legality of transferring the property, but can provide insights as to how the transfer might affect your tax situation and other aspects of your life.

For advice on using quit claim deeds to transfer property in Florida, contact the real estate attorneys at Overstreet, Miles, Cumbie & Finkenbinder, P.A, online or call 407.847.5151.

If you would like to use your property for something that is not allowed under the property’s current zoning district, you can request a variance, conditional use permit or to have the property rezoned to one with different restrictions and allowable uses. In this blog we will talk specifically about rezoning.

When To Consider Rezoning

Rezoning is a legislative action that is governed by the counties in Florida, so all rezoning requests must go through the county, or municipality, in which the property is located.

Zoning laws are in place to regulate land uses to serve the health, safety, and general welfare of the public. Rezoning may be allowed if:

  • The request is consistent with the county, or municipality’s long-range land use plan for the area;
  • There was an error or oversight during the original zoning of the property; or
  • Changes have occurred within the geographic area around the property which prevent use of the property under its’ current zoning.

The Rezoning Process

The particulars may vary depending on the county or municipality, but in general the process involves:

  1. Application and fee submission to the county or municipality’s Zoning Office/Department.​
  2. Zoning staff review of the application and submission of a written proposal to the county board of commissioners or zoning board.
  3. A public notice is posted and a public hearing is held. Applicant may be required to present their request and answer questions about it. The public may comment on the request.
  4. Recommendation is forwarded to Board of County Commissioners.
  5. The Board of County Commissioners​ renders a decision.

Consult A Real Estate Attorney For Help With A Zoning Request

Rezoning requests require property owners to do their research. You’ll need to submit an application, pay a fee, make a presentation, and possibly defend your request at a public hearing. There is a lot of paperwork involved and procedures to follow. Many property owners seek the counsel of a real estate attorney to help them navigate the process and ensure their best chance of being granted the zoning change. In some cases, the real estate attorney may advise you to seek a variance or conditional use permit, which are easier to obtain than a zoning change and still accommodate your desired use of the property.

The real estate attorneys at Kissimmee’s Overstreet, Miles, Cumbie & Finkenbinder, P.A have experience with rezoning in Osceola County and can help guide you through the process.

Contact us at 407.847.5151 to discuss your situation and learn more about our zoning services.