Eminent Domain is a legal concept that gives government entities the right to buy property or to create easements on private property, for the purpose of building or expanding public projects. Within Florida, state, county, and municipal government agencies may exercise eminent domain, as can certain utilities, school districts, and other agencies. Examples of such projects are roads and highways, railroads, or public buildings like schools. While in many cases, the property owners cannot stop the process and have no choice but to sell, they do retain certain rights. If you’ve received notice that your property will or may be affected by eminent domain, or you suspect that it may be in the future, read on for an overview of how the process works under Florida law, and what rights you have throughout the process.

Planning & Project Mapping

When a government agency plans a public project, one of the earliest steps they take is to hire surveyors and engineers to make a project map, so they can determine which specific pieces of land it will need to purchase entirely, or to buy limited use rights, which is called an easement. There are two possible processes the government can use to exercise eminent domain in Florida: fast taking, which is used in rare cases where time is critical, and slow taking, which is most common. In a fast taking situation, the government acquires rights to the property it needs upfront, but they also agree in advance to pay the owners whatever a jury finds fair, if the government and owner aren’t able to negotiate a mutually agreeable price.

In slow taking proceedings, the government does not acquire rights to the property until sale terms are negotiated and agreed upon, or set by a jury. One major difference between fast and slow takings is that in the case of a slow taking, the government can decide to back out of a project if acquiring the property it needs becomes too costly or too slow, by finding an alternative plan or property.

Government Appraisal Of Affected Property

Once the affected properties have been identified, the government entity hires an independent real estate appraiser to determine the value of land and improvements that are to be purchased entirely, and establish a value for the loss or limitation of use of property where an easement is required. The total value of the property includes not only the value of land and improvements (buildings, sheds, fences, etc.), but also things like whether the property owner will be losing rental income or business profits as a result of the sale. In cases where the government needs an easement, the appraiser will consider whether the easement is temporary (contractors need to use a part of the property during construction, for example), or permanent, in which case the appraisal will factor the reduction in size of the property and any reduction in the value of the property as a result of the easement.

Protect Your Rights & Assets With Representation

Florida law requires that the government prove the taking is for a public purpose, pay the property owner fair compensation for the property, and cover the property owners’ attorney fees and other costs in settling eminent domain cases. If you’ve received notification that your property is going to be affected by eminent domain, you have the right to hire a qualified attorney of your choice to make sure your rights and interests are properly protected under the law. It’s important to understand that this doesn’t work the same way as a standard contingency arrangement where the attorney takes a percentage of your settlement as payment for their services. In eminent domain cases, the property owner gets their settlement, and the attorney fees are awarded addition to the property owner’s settlement. You get the benefit of having an experienced attorney to represent you throughout the negotiations and settlement, at no cost to you.

Your eminent domain attorney will work with you to review the government documents explaining the purpose and scope of their proposed project, along with their appraisal report and valuation. One of the costs that Florida law specifically says the government must pay is a second appraisal and report from an independent appraiser chosen by your or your attorney. In some cases, your attorney may also recommend commissioning a traffic study (also paid for by the government) to help demonstrate loss of property value due to the proposed project, or to suggest changes to prevent that kind of loss.

Negotiations & Settlement

Once you and your attorney have credible information as to the overall value of your property and how that might be affected by the government’s proposed project, you’re in a position to negotiate a fair settlement. In some cases, your attorney may determine that the initial offer was fair and advise you to accept it. In other cases, they’ll work with you to make a counter-offer that more fairly and completely covers your potential losses. In some ways, it’s like the closing process when you buy a home, and in most cases, the buyer and seller can come to terms in negotiations. Unlike closing on a regular real estate purchase, though, the seller can’t just walk away. If no agreement is reached, the government entity can file suit for condemnation of the property, which means that a jury will determine the value in a trial. When that happens, the government is required to pay the value their appraiser set for the property at the beginning of the legal proceedings. If a jury determines that the full and fair value of the property is more than that, the property owner will be awarded that additional amount as a judgment.

Take A Deep Breath And Hire An Experienced Attorney

Learning that your property is going to be affected by eminent domain can be a panic-inducing and intimidating situation. Take a deep breath and rest assured that you have rights and legal protection, and hiring an attorney experienced in eminent domain cases will provide your best chances of getting a fair settlement for your property. The attorneys at Overstreet, Miles, Cumbie, Finkenbinder & Bondy have successfully handled Florida eminent domain cases for their clients for years. Call or contact us online for a confidential consultation and learn more about how our effective representation can help you protect your rights.

When you are ready to buy your first (or second, or third) home, it’s important that you know what to expect throughout the home closing process, and how working with an experienced real estate attorney helps keep the process running smoothly and protects your rights and interests at every turn.

Contingency Considerations

Most times, when a purchase agreement is made, there are contingencies involved, and the responsibility to clear many of them falls on the buyer’s side of the equation. For example, an inspector of the buyer’s choosing should do a home inspection. This gives you, as the buyer, a clear picture of the state of the house and property and lets you know whether you need to negotiate with the seller for repairs or credit, or, in some cases, whether you may need to pull out of the sale entirely. These are cases where you’ll benefit from having a real estate attorney already on your team, because they can help you negotiate a fair arrangement with the seller.

Other typical contingencies that are part of the home closing process include:

  • Appraisal Contingencies – A third-party appraiser evaluates the fair market value of the home and property, to verify that the value is in line with the selling price. If the appraised value is lower than the selling price, the buyer has an opportunity to back out of the sale without sacrificing any of the “earnest money” they have put down.
  • Financing Contingency – If, for some reason, your mortgage financing falls through for the sale, the financing contingency offers some protection. The sales agreement specifies a period of time during which you can pull out of the deal without penalty, if your loan falls through and you can’t find another.
  • Settlement Contingency – In cases where the buyer is also under contract to sell their current home, they may arrange for a settlement contingency as part of the sales contract for the home they’re buying. If you’re selling your current home, you already have a buyer under contract, and the home inspection contingency has already been removed, a settlement contingency on the property you’re contracting to buy protects you in case the sale of your current home falls through.

Title Search & Insurance

Your mortgage lender will require that you purchase title insurance, to protect you (and your lender) against legal claims from parties that didn’t turn up in the title search. Even if you’re making a cash purchase, title insurance may be a smart investment. In either case, getting a reliable title search from a reputable party goes a long way toward preventing nasty surprises over the claimed ownership of the property.

Mortgage Matters

Once the title is clear, your lender will process your home loan through a process called underwriting. Essentially, this is where the lender verifies that all of the information you provided in your application is correct, and that your situation hasn’t changed significantly since you made the application.

Once your loan is underwritten, the lender will provide you a closing disclosure, which spells out the terms of the loan, exact payments, and closing costs.

A Real Estate Attorney Is Your Best Advocate

From your offer to your final walk-through and final closing meeting, a real estate attorney from Overstreet, Miles, Finkenbinder & Bondy will help you avoid costly mistakes and omissions, and take a proactive role in protecting your interests throughout the home closing process. Call or contact us online for a consultation and to put one of our knowledgeable attorneys to work for you.

Many states have tenants by entireties protection, though the types of property covered and the eligible relationships between tenants vary from state to state. In Florida, tenants by entireties must be married couples (no other relationships qualify), and the property that can be protected includes both real property (real estate) and other tangible or intangible personal property, which is excluded in most other states with entireties protection. There are some other qualifying factors under Florida law:

  • The tenants must have been married at the time the acquired the property
  • The tenants’ interest in the property has to have begun simultaneously and originated with the same instrument
  • Parties must have equal interest in the property
  • The property has to be under joint ownership and control
  • When one spouse dies, the survivor will retain ownership of the property

Great. What Does All That Mean?

 These rules have a lot of potential consequences, both favorable and unfavorable, so it’s important to understand how they could affect your own situation. For example, if you and your spouse open and maintain a joint bank account while you are married, Florida law will assume that it is covered under tenancy by entireties law, unless there is some evidence to contradict this. If, however, one or both of you have bank accounts that you opened before the marriage, these accounts will not meet the qualifications, and will be considered separate property as far as asset protection goes. Closing those accounts and opening new, joint accounts after marriage will create tenants by entirety ownership.

Adding your spouse’s name to the title of a property you owned before you got married will not create tenants by entireties ownership. [Will refinancing such a property in both spouse’s names satisfy the requirements? Following assumes it does] Refinancing real property that one spouse owned before marriage creates a new instrument, simultaneous acquisition, and equal interest, which allows the property to be held by both spouses under tenants by entireties ownership.

What Kind Of Protection Does Tenancy By Entireties Provide?

Property owned by a married couple under tenants by entireties protection cannot be considered when a creditor is trying to collect on a judgment against one of the spouses. This does not apply when the tenants are jointly in debt to a creditor. If the creditor gets a judgment against one spouse as an individual, the property covered under tenants by entireties cannot be seized involuntarily. If a creditor gets a judgment against both spouses, the property can be seized involuntarily to settle the judgment.

In cases of divorce or the death of one spouse, assets that were formerly protected may become vulnerable to judgment creditors, depending on the circumstances. Entireties assets are also treated differently than other assets in bankruptcy; they’re not subject to the 2-year residency requirement for exemption, but they are only considered exempt when one spouse files bankruptcy individually, and there are no joint unsecured debts between the couple.

Reliable Advice On Tenants By Entireties Ownership & Protection

Entireties ownership and protection is a complex matter, and one you want to make sure you have correctly established before you need the protection it can provide. The experienced attorneys at Overstreet, Miles, Cumbie, Finkenbinder & Bondy will work with you to ensure that your property is held in the way that provides you and your spouse the best possible asset protection. Call or contact us online to schedule a confidential consultation.

It’s a common misconception that only “rich people” who are involved in high-value real estate transactions need to hire an experienced real estate attorney as buyers’ counsel. After all, there are hundreds of websites online telling you how easy and foolproof it is to do everything yourself, right? In truth, there are a lot of small details that can turn into huge problems as you move forward if you’re not aware of them, or you don’t fully understand what they will mean to your transaction, going forward. Purchasing real estate of any kind, and at any value, is a significant investment, and it’s a wise move to give yourself the best protection possible against avoidable problems.

Get The Answers You Need To Protect Your Own Interests

In any real estate transaction, the lender will have their own attorney, and the seller may, too. The title company/closing attorney is a neutral party, and they’re not allowed to advise either buyer or seller. Hiring buyers’ counsel means that you have a legal advocate to answer your questions about your own interests in the transaction, point out potential issues, and to help you negotiate terms that work for you.

Experienced Help With The Reams Of Paperwork

Real estate transactions involve a daunting amount of paperwork and a dizzying amount of information. Even if you’re an experienced buyer, it’s always a good idea to get a second set of eyes on the details. If you’re a new or less-experienced buyer, you’re going to have questions about the paperwork outlining your rights and responsibilities, and the details of the property you’re buying. For many people, buying real estate is the most substantial investment they’ll ever make, and ensuring that investment is a sound one means going in with a full understanding of everything they’re agreeing to.

Avoid Surprises Like Encumbrances Or Use Restrictions

While the title company will research the property title for liens and encumbrances like easements, they will ultimately issue a title insurance policy that lists those liens or easements as exceptions: Items which will not be covered by your title insurance policy. Your buyers’ counsel will review the title search, and advise you of anything that might affect your financial investment, your planned use of the property, or your enjoyment of that property. In many cases, buyers’ counsel can help you resolve or object to any title issues they find, requiring the Seller to resolve the problems before closing, so you can take ownership with full confidence that you’re not going to get hit with an unwelcome surprise after the deal is done. 

Reassurance on Closing Day

Whether you’re financing your purchase or paying cash, you will have documents to sign on closing day. Your buyers’ counsel will review the closing documents, such as the Deed and Closing Settlement Statement, to confirm all of the information is correct before you get to the closing table. Not only will they ensure the documents are correct, your buyers’ counsel will ensure the closing fees are accurate and discuss vesting options for holding title to the property.

Buyers’ Counsel On Your Side In Kissimmee

If you’re buying property in Kissimmee, St. Cloud, Celebration or the surrounding area, the experienced real estate attorneys at Overstreet, Miles, Cumbie & Finkenbinder can help you manage the details of your purchase and protect you from pitfalls. Give us a call or contact us online for a consultation, and learn more about how hiring buyers’ counsel protects your investment and your peace of mind.

The title commitment is one of the most important documents in a real estate transaction. However, most buyers have no idea what the title commitment means or what title insurance covers. The title commitment is a document issued by the closing attorney or title company that will be issuing title insurance to the after closing. The title commitment gives a detailed account of the ownership of, and liabilities associated with, that property, and it explains precisely what the title insurance policy will and will not cover, once it’s issued. Having your title commitment reviewed by an experienced real estate lawyer protects your interests and investment by making sure no surprises are lurking in the text of your title commitment.

Overview Of The Title Commitment

In addition to spelling out the requirements necessary to provide title insurance, the title commitment provides a detailed listed of any liens, obligations, or other burdens that may be attached to the title for the property, and limitations on the use of the property, like easements; existing leases; CC&Rs (covenants, conditions & restrictions, such as the rules of a homeowners’ association). The title commitment document addresses all of this information in three sections, called Schedules.

  • Schedule A – Schedule A contains basic information about the real property and transaction: The purchaser and mortgage lender, legal description of the property, the effective date of proposed title insurance policy, along with the type of policy, coverage amounts and current title vesting (ownership).
  • Schedule B-I – Schedule B-I lists all of the requirements that need to be met before the property title is considered marketable, and the insurance policy can be issued to the buyer (proposed insured). This might include things like the deed from seller to buyer, mortgage documentation between buyer and lender, satisfaction or release of any liens, corrective deeds from prior owners, or probate for a deceased owner.
  • Schedule B-II – Schedule B-II specifies items that the title insurance policy will not cover: The exceptions. There are standard exceptions for issues like unrecorded easements, encroachment, rights of tenants who occupy the property, and municipal liens. There may also be property-specific exceptions for things like CC&Rs, recorded easements, or agreements with utilities.

Real Estate Lawyers Help You Deal With Those Requirements and Exceptions 

An experienced real estate lawyer can help ensure you are aware of any issues in your title commitment that may delay closing and receive a title policy that best protects your interests.

Often they can also help you exercise your rights under the sales contract to require the Seller to resolve the title issues or have some of the listed exceptions covered by the title insurance policy. The real estate lawyers at Overstreet, Miles, Cumbie & Finkenbinder help buyers and sellers in Kissimmee, St. Cloud, and throughout Osceola County make fully informed choices for successful transactions. Give us a call at 407-847-5151 or contact us online to schedule a consultation and we’ll let you know how we can help you get what to expect from your real estate transaction, without unwelcome surprises.

One question most often asked of those who practice real estate law is whether a limited liability company (LLC) or a Land Trust offers better protection for our clients’ Florida real property investments. If you’re wondering whether you need this type of asset protection, or which type of entity structure offers the best benefits for your specific situation, you’ll get invaluable answers and advice by consulting a real estate attorney before you make your decisions.

Do I Even Need To Form A Business Entity To Protect My Real Property Investment?

In a word: Yes. There are many reasons to hold title to your investment property under a separate entity like an LLC or Land Trust, but the simplest way to sum them all up is the concept of liability. Generally, unless you form a separate entity to hold title to your property, you are personally liable for it, which means your personal assets like your home, savings, and wages are fair game in the event of a judgment against you for an incident related to that property. Some property owners choose to purchase liability insurance because it’s relatively affordable and simpler than forming a separate entity, but too often, those owners discover too late that their policy limits were not sufficient, and their personal assets are still on the table.

Florida Limited Liability Company (LLC)

For some real property investors, forming an LLC is the right call. Placing the property title under the ownership of an LLC removes the risk to the owner’s personal assets, because the LLC is the legally liable entity, instead of the owner as an individual. An LLC also offers some tax advantages over a Land Trust. In the case of a single-member LLC (one owner), the IRS treats the income from the LLC the same way it would a sole proprietorship, which means that the owner pays the income and capital gains taxes as an individual. This is called pass-through taxation. Multi-member LLCs file informational tax returns, but the actual payment of the taxes are made by the individual owners, each paying the tax for the portion of the LLC they own at their individual tax rates. There is no additional taxation for the business entity.

Florida Land Trust

A Land Trust, not to be confused with a living trust, works much differently; essentially, it’s a way to hold the title for real property by means of a contract known as a Land Trust Agreement. Because the Land Trust Agreement is not required to be filed with the state as an LLC would, and the public records show the name of the trustee as the property owner, a Land Trust offers more privacy and anonymity than an LLC. In some cases, property held by the trustee of a Land Trust may be eligible for homestead exemption, where land held in an LLC is not. Land Trusts also offer the ability to avoid probate and other debt obligations.

While Land Trusts may appeal to many investors, they are complex and must comply with the Florida Land Trust Act. Failure to comply with the Act may create unintentional title issues.

Consult an Experienced Real Estate Attorney

The attorneys at Overstreet, Miles, Cumbie & Finkenbinder serve the needs of property owners and real estate investors throughout Kissimmee, St. Cloud, and Osceola County. If you’re new to real estate investing or need advice before you select a business entity to best protect you real property investment and personal assets, call or contact us online for a consultation. Our experienced real estate attorneys will explain your options and help you set up the right entity structure for your specific situation and goals.

Commercial leases are far more complex than residential leases, and there are more ways for an inadequate commercial lease agreement to become a costly problem. Having an experienced real estate attorney draft a commercial lease specifically for every tenancy ensures that all of the terms in your lease are enforceable, and that all the bases are covered in terms of protecting your rights, interests, and property while observing the legal rights of your tenants.

Protect Your Rights & Interests

Depending upon the type of property you’re leasing and the intended uses of the tenants, your commercial lease agreement may need to include things like terms for, or prohibition of, subleasing; requirements for indemnification, insurance, and mediation/arbitration; payment of property taxes that arise from improvements made for or by the tenant; and terms for modifying the rent over the life of a long-term lease.

Protect Your Property

If your tenants are permitted to make improvements or modifications to the property, your commercial lease agreement needs to lay out any restrictions, the process for approval of those improvements, a clear statement of who is responsible to maintain and repair those improvements, whether the tenants must remove any improvements at the end of their tenancy, and what happens if their improvements or general use of the property result in damage.

Use A Commercial Lease That Covers Your Specific Situation 

A commercial lease is a legal contract, and it’s only useful if its terms are enforceable and specific enough to cover problems that arise. Some commercial landlords try to save money by using boilerplate commercial leases downloaded from the Internet. Unfortunately, we don’t know what we don’t know until it’s too late, and sometimes, property owners who take a DIY approach to drafting leases can find that those contracts didn’t cover all the bases. That can be an expensive problem.

Working with the experienced real estate attorneys at Overstreet, Miles, Cumbie & Finkenbinder to draft an effective, enforceable commercial lease is a small investment that protects your property and interests against costly issues. Call us or contact us online for a consultation, and we’ll help you create the right commercial lease for your property and tenants.

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.