Our Most Frequently Asked Questions
If you have a commonly asked question regarding our firm or information regarding legal areas we work in, there’s a good chance you can find an answer on our FAQ page or Areas of Practice topic pages.
Why should I choose VolkLaw?
We care about our clients. The results we obtain for them are important to us. VolkLaw is experienced, and that has led to a sophisticated way of handling lawsuits. We don't wing it. We work hard to avoid surprises and to be prepared when we go to court.
Mr. Volk and Mr. Dujovne are deeply involved in every case they handle. With over 50 years of combined experience in evaluating, researching, working up, and presenting cases, you will be in good hands. Our main paralegals are also very experienced and enthusiastic. We are here to earn your trust in each matter we help you with. We know needing a lawyer usually involves a stressful situation.
Let VolkLaw help carry that burden, and use our knowledge, forward thinking, and time-honored developed tactics to help you.
We have a veteran staff that cares about you and is committed to delivering results in a friendly, ethical, and professional environment. We focus on your needs and goals.
What types of legal matters does VolkLaw handle?
We handle matters involving money and property problems and opportunities. We have explained twenty of these types of legal matters in our Practice Areas section of this website. Please click that button at the top toolbar for more information.
Can I handle a particular legal matter myself?
If you had a leg injury requiring surgery, would you operate on yourself? Preparing a case for trial and presenting it is like crossing a minefield. You can easily make fatal mistakes due to a lack of knowledge of the law. For instance, do you know how to oppose a summary judgment motion? The trial is the worst part: do you know what the best evidence rule is? How about the legal definition of hearsay and the exceptions to a hearsay statement? Want to offer documents in to evidence? Do you know how to lay the foundation for introduction of documentary evidence?
What is a request for judicial notice and how do you make the request? What is a motion in limine? Is your case involving a jury trial? If so, do you know what jury instructions are and how to draft them? How do you conduct voir dire?
Even a small claims case has risks in trying to prove your case. Small claims cases are a lot simpler but the rules of evidence still apply. So, for instance, no hearsay!
The bottom line is, a well-trained, experienced trial attorney is needed if you are going to court. VolkLaw has well-trained, experienced trial attorneys. We know what can go wrong and we know how to try to prevent that from happening.
Are all lawyers the same in terms of the kind of work they can do?
Al Pacino said it best in Scent of a Woman: “I been around, ya know!” Experience matters. Being native to Brevard County matters. Having a firm that wants to know what you want to achieve, is honest about whether that is feasible based upon having solid experience-based legal knowledge, and that worries are the kind of people you want to work with. VolkLaw lawyers have those attributes.
Are internet legal forms a good idea?
Not a fan. Who drafted that form? Is the writer well trained and experienced or is he a hack working out of his mom’s garage? What is their training and expertise? Does the agreement comply with Florida law or is it a generic form for (ill-advised) use in any State? Let’s say it is a mortgage with a balloon payment? Does Florida law impose special requirements? What if it is a LLC Operating Agreement that limits fiduciary duties. Can you do that? The law at times imposes rules on certain documents. Does that form you found comply?
I have a friend who will let me copy legal papers he has. What do you think of that?
Same problem as with internet forms. And, your friend’s situation may not match yours. Assume you copy his quitclaim deed. And, assume he is not married. And, assume you are married but your wife is not on the deeded title. Can you deed that property without having your wife join in? It depends. The point is, different situations call for different documents. Legal documents carry serious implications.
What is mediation?
Mediation is a supervised settlement conference presided over by a neutral mediator who is usually an attorney or retired judge. The mediator listens to a brief presentation from each side about the dispute, suggests alternatives to further hostilities, analyzes issues, questions perceptions, uses logic, conducts private meetings of attorneys with their client, stimulates negotiation between the opposing sides, and keeps order. The mediator does nothear testimony, evaluate evidence like a judge or jury or arbitrator, or make a binding decision. The only result of the mediation conference is the agreement or non-agreement of the parties.
Mediation involves consent. This process does not prevent a party from having his or her day in court if they do not voluntarily settle the case. All decisions made by any participant in the conference are voluntary. The mediator will not coerce or unfairly influence any participant to agree to a settlement. The mediator does not give legal advice. All parties should rely on their lawyer for legal advice.
What is arbitration?
Arbitration is a less-formal alternative to the traditional lawsuit in court. Instead of a judge or jury, participants in arbitration submit their claims to an arbitrator or panel of arbitrators. It most often occurs where parties to a contract have agreed in the contract that disputes must be decided by arbitration. This alternative dispute resolution process is authorized under Florida and Federal law. Unlike other forms of alternative dispute resolution, arbitration is an adjudicatory process and the participants are usually bound by the arbitrator decision. Although arbitration is favored in law, it may not be an advantageous or prudent choice for everyone. Even the Federal Court Eleventh Circuit has recognized that arbitration ordinarily brings hardships for litigants along with potential efficiency. The Court recognized that arbitration participants often lack discovery, evidentiary rules, a jury, and any meaningful right to further review.
Should I have a real estate attorney review my real estate contract?
Absolutely. Real estate purchases and sales are usually the biggest transactions we make in our lifetimes. Even the standard real estate contract that is approved by the Florida Bar and the Florida Association of Realtors (FAR/BAR) and used by Florida real estate agents contains many provisions that are critically important to understand. The blanks have to be filled in correctly, or you may end with a contract that reads differently from what you intended. For example, if you are the buyer, have you been given sufficient time to complete inspections, obtain a survey, and apply for and obtain approval for a mortgage loan? If not, you will probably not be able to get your deposit back if you do not close the deal. There are also numerous riders and disclosures that may be appropriate for your transaction that are often not used. Have you been given an opportunity to review the association documents? Is the association contemplating imposing a special assessment on its members to pay for repairs or upgrades to common areas? These are just a few examples of issues that are important to buyers. An experienced real estate attorney can explain and help guide you through the home buying or selling process.
How should two or more individuals take title to real estate?
This is a very important decision that affects who gets the property after one owner dies. If a deed does not correctly reflect how you want to take title, you may inadvertently not leave your share of the property to your heirs, or you may leave your share to your heirs that you intended to leave only for one other owner. There are three basic ways for multiple individuals to take title: as tenants in common (TIC), joint tenants with right of survivorship (JTWROS), or tenants by the entireties (TBE). TICs each own an undivided share in the property. When one TIC dies, his heirs inherit his share, and they become TICs with the other surviving owners. Probate will be necessary to establish that the heirs now own the share of the owner who died. JTWROS property is held jointly, and if one owner dies, the other owners immediately become owners of his share. The heirs do not inherit it, and no probate is needed. TBE is like JTWROS, except that it only exists between husband and wife. If one spouse dies while the spouses are married, then the surviving spouse instantly becomes the sole owner of the property, and no probate is needed. If a married couple gets divorced, then they become TICs of the property. There are other aspects to these types of ownership, and other things to consider. You should make this decision with the advice of an experienced real estate attorney.
If a seller under a binding contract refuses to sell for no good reason, can the buyer force the seller to convey title to the property to the buyer?
Yes. A buyer usually has the remedy of specific performance to require a seller to perform the contract and convey title. The buyer has to show that the buyer is not in breach of the contract and that he is ready, willing and able to close the deal. Specific performance cases require precision and sometimes speed (to take action before the property is conveyed to someone else). An experienced real estate attorney can help you handle the case correctly and get a good result.
Can one owner of real estate force the owners of that same real estate to sell it?
Yes, assuming the owners are not married to each other. It is not a majority vote. For example, if real estate is owned by ten people, one person can force the others to sell. If they refuse, the owner who wants to sell can file a partition law suit. The net proceeds will be divided among the owners according to their ownership interest. However, if any owners have paid more than their fair share of expenses of the property, the court can order that those owners be reimbursed from the sale proceeds. Partitions can be tricky cases. An experienced real estate attorney can help you navigate the process and get a good result.
My landlord has sued to evict me. Do I have to continue paying rent while the law suit is going on?
Yes, but it is paid to the clerk of court rather than to your landlord. In an eviction law suit, the tenant has to deposit the rent claimed in the complaint to be due and also the rent as it becomes due while the case is going on. If you fail to do this, the landlord automatically gets a final judgment of possession, and you will be forced to vacate. Even if you feel the landlord has breached the lease or is demanding too much rent, you have to do this or you will have to vacate. Also, the time frame in which to do this is very short and the deadlines are strictly upheld. If you find yourself in this position, consult right away with an attorney with experience handling evictions to make sure you take the proper steps and do not lose your case by default.
Can I legally lock out a tenant who has not paid me rent?
No. You cannot resort to “self-help” measures such as changing the locks, removing the tenant’s personal property, shutting off utilities, or removing doors or windows. These are prohibited practices, and the tenant can recover actual damages or three times the monthly rent, plus costs and attorney’s fees. The tenant must be given a special three day notice to pay the rent owed or deliver possession. If the tenant does neither, then the landlord can file an eviction law suit. Landlords can get tripped up completing the statutory notice or trying to conduct the eviction on their own, which can result in the eviction case being delayed or dismissed. Also, evictions have their own special procedure, and many attorneys are not familiar with them. It is best to have an attorney experienced in evictions handle the case for you.
Among business entities, what is a limited liability company or LLC?
An LLC combines some of the best elements of the corporate and partnership forms of business without some of their drawbacks. The LLC is more like a limited partnership or subchapter S corporation, but has advantages over either entity. The LLC is designed to allow the owners to enjoy limited liability of corporate shareholders and tax benefits of a partnership; that is, the flow through of profits and losses to the owners without double taxation (taxation at both the entity level and the principal level). The law allows a LLC to be designed to operate like either a corporation or a limited partnership.
Like a corporation, the members and managers of the LLC are generally not liable for the debts and obligations of the company. LLCs provide their members and managers with a statutory liability shield. With certain exceptions, this shield protects LLC members and managers from personal liability for claims against the LLC. Corporations and limited partnerships, like LLCs, provide their owners with a statutory liability shield. However, there are practical reasons why the LLC shield is stronger than the corporate shield. In addition, only the limited partners of a limited partnership have a statutory liability shield; the general partners do not.
Again, these entities are very complex and this brief description is not enough to help you decide upon a choice of entity.
Among business entities, what is a partnership?
A partnership is an association of two or more persons to carry on a business for profit as co-owners. In most partnerships, all partners are general partners and are liable to the full extent of the partnership debts and obligations. Partnerships are generally controlled by partnership agreements, which may be written, oral, or implied. Florida law governs all partnership activities not covered by agreement or on which the agreement is silent.
There is a type of partnership which can reduce the risk of liability for a partner who is simply sharing in the profits and losses, but not actually involved in running the business. A limited partnership consists of two classes of partners: general partners and limited partners. The general partners manage the limited partnership and are personally responsible for its debts and obligations. The limited partners are similar to shareholders of a corporation. They cannot participate in the management of the entity, but can only determine who will manage the partnership. Their liability is limited. The limited partners share in the profits of the partnership, but their losses are limited to the amount of their capital contribution.
Among business entities, what is a sole proprietorship?
A sole proprietorship is a business enterprise owned by one person with unlimited personal liability for the debts and obligations of the business. A sole proprietorship can exist either under the owner’s real name or under a fictitious name (commonly referred to as a ‘dba’ (an acronym for ‘doing business as’).
Among business entities, what is a corporation?
One of the best known and most widely used business entity forms is the corporation. The four corporate characteristics are: continuity of life, centralization of management, limited liability, and free transferability of interests in the absence of an agreement limiting that.
The main advantage of a corporation is the liability protection it provides its owners, because the corporation is a legal entity that is separate from its owners. The corporation has a perpetual life and is liable for its own debts and only has the corporation’s assets at risk.
The assets of a shareholder are personal assets that generally cannot be reached by corporate creditors in the absence of some personal wrongdoing such as fraud or negligence or wrongdoing in how the company was capitalized, operated, or divested of assets. This area is extremely complicated.
Shareholders don’t have control over the day-to-day operations of the business. The shareholders are responsible for electing directors of the corporation. The directors oversee the operation of the corporation and make major corporate decisions, such as appointing the officers. The directors meet at least annually to assess the past performance of the corporation and to plan for the future. The officers of the corporation are responsible for the day-to-day operations of the company.