Florida Real Estate Lawyers Blog

ESQ.title’s Expansion to Palm Beach County

Published on: December 10, 2015 | by ESQ.title

ESQ.title is pleased to announce the expansion of their practice to Palm Beach County. The firm is opening an additional office located at 10 SE 1^st Ave Suite A Delray Beach, Florida. We look forward to serving your legal needs and providing the highest level of service to clients in Palm Beach County and all over South Florida.

ESQ.title is a business and real estate law firm founded by attorneys Alejandro E. Jordan and Daniel T. Pascale to provide quick, tenacious and cost-effective solutions for their clients. With extensive local knowledge and know-how, our attorneys are well positioned to advocate for their clients, help resolve their disputes, achieve their objectives and gain them a competitive advantage.

Our full service law firm offers first-class legal services to businesses and successful individuals throughout South Florida’s international community. Our clients include business owners, domestic and multinational corporations, property management companies, lenders, receivers, condominium and homeowner associations, commercial property owners, entrepreneurs, sellers, buyers, developers, landlords, contractors and clients across the globe doing business in South Florida.

Florida Real Estate Case Law Updates

Published on: October 1, 2015 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Lenders Standing at Foreclosure

Creadon v. U.S. Bank N.A. 166 So.3d 952 (Fla. 2^nd DCA 2015)

The circuit court entered final judgment in favor of U.S. Bank N.A., foreclosing a mortgage encumbering property. The owners assert that U.S. Bank did not prove its standing to foreclose the note and that the court erred in substituting it as the plaintiff.

No one seriously disputed that the borrower was in default on the mortgage encumbering the property. The original complaint asserted, and Plaintiff’s testimony confirmed, that the borrower had not payments since 2008.

The issue here is the plaintiff presented sufficient evidence to warrant its substitution as plaintiff and to prove that it had standing to enforce the note and mortgage. It did not introduce the assignment of mortgage, or any other assignment, into evidence. It proceeded solely on the theory that it was the holder of the note and thus had the right to foreclose the loan.

The borrowers appealed and prevailed as the Court determined that the Bank had not established that it was holder of the note because the note had been filed with the registry of the Court years earlier than the plaintiff’s appearance in the case.

Disclosure of defects to property being sold with an “as-is” contract

Bowman v. Barker 40 Fla. L. Weekly D2091b; 2015 WL 5239079

The purchaser of a home claimed the sellers knew of material defects to the property but did not disclose them to the purchaser. The trial court granted summary judgment for the sellers.

The 1^st DCA cited to the Florida Supreme Court’s holding in Johnson v. Davis, 480 So.2d 625 (Fla. 1985), which established that where a vendor knows of facts materially affecting the value of property not readily observable and not known to a purchaser, the vendor must disclose those facts to a purchaser. A contract being “as is” does not change this duty.

FAQs – 1031 Exchanges (Tax Deferred Exchanges) for Commercial Real Estate

Published on: July 31, 2015 | by ESQ.title

By: Alejandro E. Jordan, JD

Frequently Asked Questions (FAQs) – 1031 Exchanges (Tax Deferred Exchanges) for Commercial Real Estate

Question 1: What is the difference between a sale and an exchange?

Answer 1: A sale is an exchange of real property for cash. An exchange is a transfer of property for other like-kind property – a “non-taxable” sale.

Question 2: What provisions are required in a Purchase and Sale Agreement to enter into an exchange?

Answer 2: A Purchase and Sale Agreement should contain language establishing the exchangor’s intent and notifying the buyer of the exchange. Examples are:

When Selling:

“It is the intent of the Seller to perform an IRC Section 1031 tax deferred exchange by trading the property herein with [_________________]. Buyer agrees to execute an Assignment Agreement at the request of Seller at no additional cost or liability to Buyer.”

When Buying:

“It is the intent of the Buyer to perform an IRC Section 1031 tax deferred exchange by trading the property herein with [_________________]. Seller agrees to execute an Assignment Agreement at the request of Buyer at no additional cost or liability to Seller.”

Question 3: Can an investor trade from several small properties into one large one?

July 2015 Florida Real Estate Case Law Updates

Published on: July 11, 2015 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Foreclosure Sale Notice

Skelton v. Lyons, 157 So. 3d 471(Fla. 2d DCA 2015)

Background: Debtor filed objection to foreclosure sale of property. The Circuit Court sustained the objection and set aside the foreclosure sale. Third-party purchaser appealed.

Holding: The District Court of Appeal held that the failure to serve third-party purchaser with notice of either debtor’s objection to foreclosure sale or the hearing held on the objection violated purchaser’s due process rights, and the debtor’s objection to foreclosure sale was insufficient as a matter of law.

Common Law Claims Precluded by Construction Lien Statute

Jax Utilities Management, Inc. v. Hancock Bank, 40 Fla. L. Weekly D948 (Fla. 1st DCA 2015)

Background: Contractor brought an action against construction loan lender asserting equitable lien and unjust enrichment claims. The Circuit Court granted summary judgment for the lender and the contractor appealed.

Holding: The District Court of Appeal held that the one-year statute of limitations began to run from last furnishing of labor, services, or material for the improvement of real property, barring contractor’s equitable lien claim, and, as a matter of first impression, statute governing responsibilities of construction loan lenders precluded contractor’s common law claims.

Florida Real Estate Case Law Updates

Published on: May 13, 2015 | by ESQ.title

By Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

CORRECTING A FORECLOSURE JUDGMENT

The Court considered whether Florida’s Rule of Civil Procedure allowing for corrections of “clerical mistakes,” encompasses authorization to supplement a final deficiency judgment by clarifying the party defendants’ status in the litigation almost three years after the entry of the initial judgment. See Fla. R. Civ. P. 1.540(a). The District Court of Appeal held that rule governing relief from a judgment, decree, or order on the basis of a clerical mistake did not extend to allow the Circuit Court to supplement its initial deficiency judgment in order to more definitively address the litigation status of the three party defendants.

OBJECTION TO FORECLOSURE SALE NOTICES

Debtor filed objection to foreclosure sale of property. The Court held that the Debtor’s perfunctory objection to the judicial sale did not make any claims of deficiency regarding the sale’s unfairness or irregularity. As such, Lyons’s objection was legally insufficient as a matter of law and the trial court necessarily abused its discretion by setting aside the judicial sale on this basis. And while there was a hearing held on the objection, the trial court did not make any findings in its order or state its reasoning for setting aside the sale. Similarly, there is nothing contained in the record to indicate that the sale suffered any deficiency or irregularity requiring it to be set aside. Without such a basis, the trial court abused its discretion when it set aside the sale.

What Is a Reasonable Amount of Time To Be Bound by a Florida Non-Compete Agreement?

Published on: March 31, 2015 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

In determining the reasonableness in time of a postterm restrictive covenant (a.k.a. a non compete agreement) not predicated upon the protection of trade secrets, a court must apply the following rebuttable presumptions:

In the case of a restrictive covenant sought to be enforced against a former employee, agent, or independent contractor, and not associated with the sale of all or a part of: (1) the assets of a business or professional practice; (2) the shares of a corporation; (3) a partnership interest; (4) a limited liability company membership; or (5) an equity interest, of any other type, in a business or professional practice, a court must presume reasonable in time any restraint six months or less in duration and must presume unreasonable in time any restraint more than two years in duration

Investing in NNN Triple Net Leased Commercial Real Estate Properties

Published on: February 28, 2015 | by ESQ.title

By: Alejandro E. Jordan, JD

Investing in NNN Triple Net Leased Commercial Real Estate Properties

Not all real estate investors are created equal. A large number of them simply are looking to place their hard-earned money into a safe haven to avoid the often unpredictable nature of the financial market. In a nutshell, based on how the leases are drafted, NNN leased investments state that the tenants are responsible for paying rent plus the operating expenses of the building such as taxes, insurance, repairs and utilities. A true passive investment for the owner/landlord.

These NNN (Triple Net Leased) investments are valued using a combination of factors, such as the tenant’s credit, the length of the lease and rent escalations over the term, and, last but not least, the real estate itself.

“NNN leased properties survive the ups and downs of the markets. As an investor, you know your lease is guaranteed long term, often with rental escalations worked into the leases, meaning the investor will be receiving a steady income, regardless of how the outside forces are performing,” says Enrique Jordan, Investment Sales Associate with NAI Miami, Commercial Real Estate Services Worldwide. Continue Reading ›

What are the Risks of Purchasing a Tax Deed in Florida?

Published on: January 21, 2015 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

It’s important to know that when you purchase a tax deed in Florida, that the title to the property is not immediately insurable and is not considered legally marketable. In fact, if a tax deed has been of record for fewer than 20 years, subsequent purchasers, lenders, and title insurers will not consider the title marketable and will require the tax deed holder to obtain a judgment quieting title in the holder before relying on the tax title. Thus, tax deed properties that are acquired without further legal action are essentially worthless unless you plan to rent or live in the property for the next twenty years before selling it.

Quiet Title Actions

Tax deed purchasers who don’t wish to wait 20 years to sell their newly acquired property must file a quiet title action to obtain marketable, insurable title. The purpose of a quiet title action is to forever bar prior owners, mortgage and lien holders from asserting any interest in the real property.

Because a quiet title action stops redemption periods and eliminates potential claims of lien, once the quiet title action is complete and the 30-day appeal period expires, you’ll be able to sell the property, offer marketable, insurable title to a prospective purchaser or obtain title insurance for yourself. In short, a successful quiet title action will allow a title insurance company to write a policy insuring title to the property.

Crafting an Enforceable Noncompete Agreement

Published on: October 28, 2014 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Courts have traditionally viewed noncompete agreements with disfavor, believing that the agreements contravene public policy. The agreements were seen as unfair restraints on trade and in response, the common law prohibited the use of such agreements. In time, the restrictions on such agreements lessened. Nevertheless, the common law has generally restricted their use for any purpose other than for legitimate business purposes. To ensure the purpose is legitimate, the law requires that a valid noncompete agreement meet a reasonableness requirement.

The reasonableness requirement is designed to balance the interests of all entities affected by the noncompete agreement: the employer, the employee, and society as a whole. Each entity has an interest to be protected. The employee wishes to preserve his mobility; the employer wishes to protect itself from unfair competition; and society wishes to balance with a system that provides incentives for the development and training of employees. With such varied interests at hand, the successfully drafted noncompete agreement must be sculpted carefully as to satisfy all three parties.

Commercial Real Estate – Terms & Definitions

Published on: October 21, 2014 | by ESQ.title

By: Alejandro E. Jordan, Esq.

Commercial Real Estate – Terms & Definitions

Availability Rate: The ratio of available space to total rentable space, calculated by dividing the total available square feet by the total rentable square feet.

Available Space: The total amount of space that is currently being marketed as available for lease in a given time period. It includes any space that is available, regardless of whether the space is vacant, occupied, available for sublease, or available at a future date.

Build-to-Suit: A term describing a particular property, developed specifically for a certain tenant to occupy, with structural features, systems, or improvement work designed specifically for the needs of that tenant. A build-to-suit can be leased or owned by the tenant. In a leased build-to-suit, a tenant will usually have a long term lease on the space.

Buyer: The individual, group, company, or entity that has purchased a commercial real estate asset.

Cap Rate: Short for capitalization rate. The Cap Rate is a calculation that reflects the relationship between one year’s net operating income and the current market value of a particular property. The Cap Rate is calculated by dividing the annual net operating income by the sales price (or asking sales price).

CBD: Abbreviation for Central Business District. (See also: Central Business District)

Central Business District: The designations of Central Business District (CBD) and Suburban refer to a particular geographic area within a metropolitan statistical area (MSA) describing the level of real estate development found there. The CBD is characterized by a high density, well organized core within the largest city of a given MSA. Continue Reading ›