Posts

What’s Eminent Domain And How Does It Work Under Florida Law?

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 Law, P.A. 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.

/by

What To Expect During The Home Closing Process

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 Law, P.A. 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.

/by

Why Do I Need An Attorney To Draft My Commercial Rental Lease?

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 Law, P.A. 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.

/by

Why Do I Need An Attorney To Draft My Residential Rental Lease?

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 Law, P.A. 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.

/by

What Are Documentary Stamp Taxes And When Do I Have To Pay Them?

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 Law, P.A. 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!

/by

4 Advantages Of Using A Real Estate Attorney Vs. A Title Company

Unlike many other states, Florida does not require the use of an attorney during a real estate transaction. Buyers and sellers have the choice of using an attorney or a title company to handle the closing on their real estate transaction. This often causes the parties to wonder why they should hire an attorney instead of a title company to handle their closing.

In this post, we want to share with you 4 reasons why a title company is not a substitute for an experienced real estate attorney.

4 Advantages To Hiring A Real Estate Attorney For Florida Property Transactions

1. A title company works for the title insurer, not the buyer or the seller, whereas real estate attorneys work for whomever hires them. Once hired, an attorney represents that client throughout the transaction – in addition to overseeing the transaction to completion, they look out for their clients’ best interest and advocate for their client. The title company’s role is to prepare the basic closing documents required by the title insurer to complete the transaction and issue the title insurance policy.

2. Title agents do not have law degrees and cannot provide legal advice. When there are problems or questions, the buyer/seller can’t turn to the title company for help or advice. One of the most common issues that comes up is how to take title to the property, which has legal and tax ramifications. A title agent cannot provide advice in this situation, but an attorney can. Realtors as well as the buyer/seller, benefit from working with attorneys since the attorney can review the contract and answer legal questions during the contract negotiation process; title companies cannot. 

3. Title agents cannot create contract addenda, address problems in the sales contract, deal with non-standard forms, or correct legal issues that affect the title. This is important because if an issue arises, corrective documents may need to be obtained or created. Attorneys can provide legal advice on the best way to handle the issue, as well as prepare necessary documents, title agents cannot. Depending on the issue, a title agent will in fact have to send parties out to hire an attorney (at their own expense) to handle specific problems. Not having an attorney can delay the closing or even cause the transaction to fall apart entirely.

4. The costs of hiring a title company vs. an attorney are comparable. Many closing costs such as title insurance premiums, documentary stamps, and recording costs are set by the State of Florida. They are the same whether an attorney or a title agent is facilitating the process. In some cases, using an attorney can actually save the parties money by performing double duty as an attorney and a title agent; a title agent cannot do the same.

To learn more about the real estate services at Overstreet Law, P.A, contact us at 407.847.5151.

/by