Real Estate Law

Real estate is complex and carries potentially disastrous financial risks. Imagine buying a piece of property with other people claiming an ownership interest in or finding out you cannot build what you want to build on that land. Or, that the property had defects in it that the seller knew about and did not tell you about or lied about.

Real Estate law involves more than just the obviously physical aspects. It is a branch of civil law that protects the right to own and use land, as well as any permanently affixed trees, minerals, man-made additions, structures, buildings, or other fixtures and improvements on the land. It includes benefits, rights, and interests that are legally attached to the property such as: possible rights to the airspace above the property, rights to reside on the land for a specific amount of time, rights to drill into the ground under the property, and much more. This branch of law impacts most people on a daily basis, though you may not realize it.

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1. Negotiating, Drafting and Reviewing Real Estate Contracts This is the most common type of service involving real property sought by clients. Real estate sales and purchases are complex, and should be done with the advice of an attorney. Often real estate agents or the parties themselves draft their contracts. Most transactions are accomplished without the use of an attorney, and often litigation takes place as a result. Our goal is to reduce the likelihood of litigation, and to put our client in a better legal position in case litigation should arise. Counseling our clients in these areas makes them more informed, and their contracts better protect their interests

2. Documents Often, clients may need real estate advice or documents prepared even if there is no contract pending. Such services include advice on and preparation of deeds, life estates, mortgages, promissory notes, easements, and corrective instruments.

3. Foreclosures and Alternatives VolkLaw represents both borrowers and lenders in foreclosure actions. In the past few years, the number of foreclosures has skyrocketed and has declined, but many problems about how mortgages were owned, serviced, transferred, and enforced or worked out became apparent. Because of the complexity, to foreclose or be foreclosed without a knowledgeable attorney would be a very bad choice. If an owner fails to file an effective response to a foreclosure complaint this can result in the owner losing the case and the property in a few months, and remaining liable for the deficiency (the amount due to the lender minus the fair market value of the property on the day of the judicial sale). Our firm recognizes the issues in foreclosure actions and files effective responses, which provide for several benefits:

  1. If it is determined that the plaintiff does not have the right to sue for foreclosure, the plaintiff may be denied the right to foreclose or collect on the promissory note.
  2. Assertion of rights under State and Federal law which may affect the lender's right to foreclose.
  3. It improves the owner's position in negotiating an alternative to foreclosure, such as a loan modification if the owner wants to keep the property, or a short sale or deed in lieu of foreclosure if the owner wants to give up the property.
  4. It gives the owner more time to accomplish the greater goal of securing an alternative to foreclosure. Uncontested foreclosures take approximately 4 months, while contested foreclosures take approximately 12 to 18 months.
  5. If an alternative to foreclosure is secured, no foreclosure judgment is entered against the owner.
  6. The impact on the owner's credit is not as severe if the parties agree to an alternative to foreclosure
  7. It is possible that the owner can emerge owing less than or none of the remaining balance of the loan.

There can be federal tax consequences to receiving loan forgiveness, but most owners who live in the property being foreclosed will not have tax liability under current federal law. Other issues related to foreclosures including suits to collect on the note, having rents deposited into the court registry, and appointment of a receiver are all available remedies if the documents so provide.

Our knowledge in defending foreclosures makes us better at prosecuting foreclosures also. Where some attorneys become mired in the foreclosure process, our firm uses this knowledge and works proactively to prosecute foreclosure cases. We are also familiar with statutory procedures that can expedite foreclosure cases.

4. Leases and Evictions VolkLaw drafts and negotiates commercial and residential leases to position clients for effective enforcement. Evictions are generally not difficult, but it is challenging to provide these services on an efficient basis if an attorney is not comfortable with the procedure. Our firm is pleased to offer a fixed fee schedule for most residential evictions. Evictions are sought to be completed as quickly and effectively as possible. Evictions based on reasons other than non-payment of rent or holding over beyond the expiration of the tenancy can become quite involved.

5. Quiet Title Actions Quiet title actions arise, for the most part, due to mistakes that occurred at some time in the past in the chain of title. The mistakes tend to be found in the title search when the owner wants to sell the property or refinance the mortgage on the property. Quiet title actions are also an option for properties purchased at tax deed sales. A quiet title action becomes necessary in order to make the title to the property marketable. Often, the parties who were responsible for the mistakes are dead or cannot be found, so a diligent search and the appointment of an attorney ad litem is usually required. Taking title insurance underwriting requirements into account is very important, as the goal of the client is typically to sell the property or refinance the mortgage upon obtaining a final judgment.

6. Constructions Liens The construction lien law (f/k/a the mechanic's lien law), Chapter 713, Part I, Florida Statutes, is changed virtually every year. It establishes liability and priorities with respect to the various players involved in providing or purchasing improvements to real property. The law is such a mystery to owners and small contractors alike that the parties are often shocked by what the law provides. It is counterintuitive to an owner that he may have to pay twice if his contractor fails to pay his subcontractors or suppliers. Most owners do not know that if they fail to pay their contractor or a subcontractor with a valid claim, they can end up with a lien on their property, and that their homestead is not exempt. Likewise, subcontractors and material suppliers often do not realize that they must provide notice to owner within a certain amount of time, and they also have a certain amount of time in which to file their claim of lien, otherwise the lien is forfeited. The law is full of deadlines, notices, and definitions that can be confusing. We are familiar with them and keep our clients in compliance.

7. Condominium and Homeowners Association Liens and Disputes Association covenants and restrictions affect many residential and commercial properties. They govern most aspects of how the property can be used. They provide for collection of regular and special assessments, and dictate enforcement provisions, including liens for non-payment and fines for non-compliance. Special statutes govern condominiums and homeowners associations, and require special procedures such as mandatory non-binding arbitration. We are familiar with these laws and procedures (although they change regularly), and help our clients through this minefield when disputes arise.

8. Tax Certificates and Deeds A little knowledge in this area goes a long way. When a property owner fails to pay his county real estate taxes, the county auctions off tax certificates. Tax certificates can be a very good investment, because the investor will either get a high rate of return on his money, or will have the chance to obtain property for much less than its market value. This is because a tax deed trumps all other liens in terms of priority. Owners need to understand the risks involved in not paying real estate taxes. Our firm can help owners and real estate investors understand the risks and benefits association with tax certificates and tax deed sales.

9. Partitions When two or more persons own real property, and they cannot all agree on whether to dispose of it, the remedy of any owner is to partition the property. The partition action does not require the consent of all parties. It is forced upon the other owners by an owner who no longer wants to own the property with the others. The action determines the ownership interests in the property, and typically requires the property to be sold at either a private sale or public sale. Usually, the parties have become very adversarial to each other, and one or more parties refuse to sell. They may be former friends, relatives, heirs, boyfriend and girlfriend, etc. Most of these cases settle, and partition trials and judgments are rare.

10. Homestead Issues Florida's Constitution provides for the most generous homestead protections in the nation. Generally speaking, a homeowner cannot lose his homestead to claims of creditors except in limited circumstances, including failure to pay taxes, a default under a mortgage secured by the homestead, failure to pay for construction labor or materials that improved the homestead, and failure to convey the homestead when the owner is under contract to do so. A judgment on a claim unrelated to the homestead will usually not constitute a lien on the homestead. If the owner takes certain steps, he can sell or refinance his property even if there is a judgment against him, and the proceeds of the sale can also be protected. It is possible for a property to lose its homestead status and the protections that go with it. Understanding the breadth and scope of this protection and its limitations is important to creditors and debtors alike.

11. Easement and Boundary Issues Sometimes neighboring property owners do not honor easements or boundaries. This can include physical encroachments or interference with valid use of an easement. We have helped negotiate these disputes when possible, and to enforce our clients’ rights when necessary.

12.Non-Disclosure and Fraud An owner of a home must disclose to a buyer all facts of which he is aware that materially affect the value of the property which are not readily observable or that have not been previously disclosed to a buyer. We advise our seller clients how to properly comply with this requirement. The same rule does not apply to commercial property sales. There, the law is “buyer beware.” If an owner covers up a defect or lies about it, it can constitute fraud. We represent buyers and sellers in these types of disputes.

The matters discussed here are general in nature and are not to be relied upon as legal advice. Every specific legal matter requires specific legal attention. The law is constantly changing and matters discussed today may not be the same tomorrow. Legal matters are also subject to different interpretations by attorneys, judges, jurors and scholars. No attorney-client relationship is intended or created as a result of matters discussed here. You should consult counsel of your choice if you have any dealings in these areas of the law. Volk Law Offices, P.A. and its attorneys make no representations or warranties with respect to the accuracy or completeness of the matters addressed.