POST-HURRICANE ADVICE ON TREE LIABILITY IN FLORIDA

By. Dan Rich
Clark, Campbell, Lancaster & Munson, P.A.

As relief efforts remain ongoing, it is evident that hurricane Irma has had a very drastic effect on our local community, with one of the largest impacts being the massive amount of downed trees and vegetation that have been strewn across our community. We all are aware of the dangers of fallen trees; however, in the wake of Irma I thought it would also be helpful to answer some basic legal questions associated with trees, shrubs and vegetation and the liabilities associated with the same.

Can I trim my neighbor’s tree branches if they are growing into my yard? Yes, a landowner has the legal right to trim branches and limbs that extend into their property line. However, Florida law only allows tree trimming up to your property line, and trimming is prohibited if: (i) the trimming requires access to the neighbor’s property; or (ii) the trimming itself will destroy the tree.

A large tree mainly hangs over into my yard, but the trunk is in my neighbor’s yard. Who owns the tree? Your neighbor owns the tree. Currently, the law provides that as long as the tree trunk is wholly in the neighbor’s yard, said tree belongs to the neighbor. But, when the tree trunk is divided by the property lines of two or more people, Florida law refers to the tree as a “boundary tree.” Under a “boundary tree” scenario, all of the associated property owners own the tree and share equal responsibility for it. Removal of a “boundary tree” without the unanimous consent of all owners is unlawful.

Irma knocked down my neighbor’s tree limb onto my property, damaging my house – is my neighbor responsible for the damage? Maybe. Based on current case law, if a lawsuit was brought to recover the damages the court would apply what is called the “reasonable care standard.” Essentially, if your neighbor took reasonable care to maintain the limb, and if a reasonable person would conclude that the limb was not threatening to fall, then the neighbor would more than likely not be liable for any damages. However, if after applying the “reasonable care standard” the court finds that a reasonable person would have or should have known that the tree limb posed a danger of falling, or that the neighbor never did reasonable inspections to maintain the limb, then the neighbor may be liable for negligence, and in turn responsible for the damages to your property.

My neighbor’s tree looks like it’s about to fall, what can I do? As provided above, landowners are responsible for maintaining the trees located on their property. Legally, this creates two duties: (a) conduct reasonable inspections of the trees; and (b) take care to ensure tree safety. Hence, if a neighbor conducts a tree inspection and a branch or the tree itself is objectively determined to be dangerous, then they are responsible for its removal. If the neighbor does nothing and the tree does in fact cause damage, your neighbor can in turn be held liable.

Does the City of Lakeland have any laws in place regarding tree removal? Yes, the City of Lakeland currently deems it unlawful if a landowner: (i) plants a tree, shrub or vegetation within 30 feet of any easement or public way where City sewers are located; (ii) maintains a tree, shrub or vegetation that obstructs the view of any driver of any vehicle on City streets; or (iii) permits a tree, shrub or vegetation to grow to within five feet of any electrical wire that carries 110 volts or more. If one of the above obstructions is observed, the City will provide the owner with time to remedy the violation on their own, then if nothing is achieved the City has the legal authority to step in and remove the tree, if necessary.

Lastly, in 2013 the City of Lakeland passed an amendment to its Land Development Code that essentially prohibits commercial development sites, and newly constructed residential subdivisions from removing certain protected trees. Some examples of these protected trees include Pecan, Sugarberry, Camphor, Sweetgum, Sycamore and Live Oak trees. For an exhaustive list of the trees, please review Table 4.5-6 of Lakeland’s Land Development Code.

As Lakeland fights hard to stand up on its feet again, it is hoped that the information provided herein clears up any questions you may have had about the liabilities associated with trees and other forms of vegetation. It is recognized that the above questions may not address all concerns, and if you have a specific question you are urged to consult an attorney who has particularized knowledge regarding this aspect of property law.

Is an oral contract binding?

By:  J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Many individuals today still conduct business or enter into agreements with handshake deals or oral statements. Generally speaking, oral contracts are enforceable in Florida. However, there are some exceptions which make certain oral contracts unenforceable.

Was a contract formed?

The first question that needs to be answered when addressing whether an oral contract is enforceable is – was a contract formed?

An oral contract is formed when (1) an offer is made, (2) the offer is accepted by the other party, (3) the offer and acceptance are supported by consideration, and (4) essential terms of the agreement are specified.

An example of a basic oral contract is as follows:

John Smith verbally offers to mow Jane Doe’s lawn tomorrow for $100. Jane Doe thinking this is a great deal accepts this offer by verbally stating to John Smith that she accepts the offer.

John Smith and Jane Doe have entered into an enforceable oral contract. John Smith made an offer to Jane Doe. Jane Doe accepted this offer by orally communicating affirmation. Legal consideration is generally something bargained for and received as part of the agreement. Consideration can include property, money, a return promise, an act, or even forbearance from an act. In this example, the consideration is the $100 which Jane Doe promised to pay to John Smith in order to induce him to take the action of mowing her lawn. Finally, it is not necessary that all terms be identified but that essential terms be defined so that each party understands what is expected of them under the agreement. Here, the essential terms are present – actions to be taken, amount of payment, location, and time of performance.

This is a simple example of an oral contract; however, oral contracts can be created and enforceable for far more complex transactions – such as the loaning of substantial sums of money, construction, or even the sale of a business.

When are oral agreements not enforceable?

Some common transactions which must be in writing are as follows: any contract for the sale of land or real estate, any lease lasting longer than one year, any agreement that cannot be performed within one year, an agreement that is not to be performed within one year, agreements to pay the debts of another, and agreements for sale of goods valued at $500.00 or more.

While oral contracts are generally enforceable in Florida, it is recommended that any agreement be put into writing and signed by the parties involved to ensure that that expectations and requirements of the parties are clear and can be specifically recalled in the event of a dispute. It is recommended that you have an experienced attorney review any agreements before they are entered into. Having an attorney review contracts prior to execution can help the parties avoid future problems and future expenses. Finally, if you face a situation where you need to enforce an oral or written contract, or someone is seeking to enforce a contract against you, seek immediate legal assistance from an experienced contracts litigation attorney.

Matt Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland.  Questions can be submitted to thelaw@cclmlaw.com.

Second Marriages and Your Estate Plan

By: Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Blended families are becoming the norm these days and often times just before or after a second marriage occurs, the newlyweds want to craft their wills or trusts to provide for both their new spouse and their children from a previous relationship.

Q. What if I don’t have a Will?

A. If a person dies without a will in Florida it is known as dying Intestate. If a person dies Intestate and they have both a surviving spouse and children that are not children of their surviving spouse, Florida law provides that 50% of the assets subject to the Estate go to the children and the other 50% go to the surviving spouse.

Q. If I don’t like what would happen to my property if I die Intestate, can I change these percentages by creating a will?

A. Yes, any person over age 18 can make a will in Florida to determine which person(s) will administer their Estate and which person(s) will inherit their property when they die. However, this control over disposition of assets is somewhat limited as surviving spouses have many property rights and are entitled to some of their deceased spouse’s assets.  The surviving spouse can often claim those assets (even if the will says otherwise) if they take action timely and they haven’t previously waived those rights by executing a valid waiver or marital agreement waiving those property rights.  Below is a non-exhaustive list of rights and claims that a surviving spouse may be able to make on their deceased spouse’s Estate (even if the will says otherwise):

Homestead Rights:  A surviving spouse is entitled to claim either a life estate or ½ the value of the homestead real property.

Exempt Personal Property: Certain items such as household furnishings up to a maximum of $20,000 and two (2) motor vehicles may be claimed from the Estate by the surviving spouse as exempt personal property.

Family Allowance: An allowance of up to $18,000 may be claimed from the Estate by the surviving spouse to pay for their maintenance during the Probate administration.

Elective Share:  Upon death, the surviving spouse can decide to file for an Elective Share in the probate, which if timely filed would allow the surviving spouse to receive 30% of the deceased spouse’s Elective Estate.  The Elective Estate includes more than just the assets subject to probate.  The Elective Estate includes the following items:

  • The Assets in your Probate Estate and assets subject to probate anywhere else in the United States;
  • Assets in a Revocable Trust;
  • Pensions and Retirement Plans;
  • Joint Bank Accounts, Pay on Death Accounts, Totten Trusts;
  • Property Held in Joint Tenancy and Tenancy by the Entireties (limited to decedent’s interest in the property);
  • Certain irrevocable transfers;
  • Life Insurance policies payable to someone other than surviving spouse (includible value limited to decedent’s interest in net cash surrender value immediately prior to death);
  • Transfers made within one year of decedent’s death;
  • Irrevocable transfers to an Elective Share Trust; and
  • Property passing directly to surviving spouse.

Q. What if I have an old will from before I got re-married and never updated my will after my new marriage?

A. If a person that already has a will gets married, and fails to create a new will after the new marriage, the surviving spouse is entitled to make a claim for the same share as if the person dies intestate (50% of the assets in the Probate Estate). This is known as being a Pretermitted Spouse and it only encompasses assets that are subject to Probate. In contrast, the Elective Estate includes many assets outside of probate. A surviving spouse must make a choice between 1) choosing to be treated as a Pretermitted Spouse or 2) filing a claim for their Elective Share but they cannot claim both. Usually, calculations of both are made and the surviving spouse would decide to claim whichever is higher in value.  Homestead Rights, Exempt Personal Property, and Family Allowance are in addition to whichever option the surviving spouse chooses (between Pretermitted Spouse and Elective Share).

All of the above property rights must be timely claimed by the surviving spouse in a probate case upon the death of the spouse or else they may be considered time barred and thus lost.  It is important to ensure your current estate plan has been crafted to account for the above referenced property rights or the property rights have been waived to the extent desired if you want your will or trust to be fully honored after your death.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

 

Tax Deed Sale or Tax Deed Fail?

By: Anthony A. Velardi, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Q: I’d like to purchase property at an upcoming Tax Deed sale. What do I need to do, and what should I be aware of?

A: Prior to the Tax Deed sale, you’ll need to visit your local Clerk of Court’s website to register and place a deposit which is typically the greater of $200 or 5% of your maximum bid and should be made by electronic check or wire transfer. For example, you should deposit $2,500 if you intend to bid up to $50,000. If you wish to purchase the property with an LLC or other entity, you should form the entity well in advance of the Tax Deed sale.

If you have the winning bid, within 24 hours you must pay to the Clerk the balance of the bid along with the recording fee and state documentary stamp taxes based on the winning bid amount. After the Clerk receives full payment, the Clerk issues and records the Tax Deed. However, according to statute, the property owner has the right to redeem his property by paying all back taxes and costs at any time before the successful bidder makes full payment to the Clerk for the Tax Deed.

When purchasing property at a Tax Deed sale, there are several things to be aware of. The Clerk must take certain steps and actions before the property may go to Tax Deed sale. If these requirements are not strictly complied with, the Tax Deed may be invalid. Furthermore, the tax certificate holder applying for the Tax Deed is sometimes the high bidder at the Tax Deed sale because the tax certificate holder is entitled to a credit against the tax certificate holder’s bid price equal to the amount of the tax certificate. Also, you should keep in mind that there may be environmental issues with the property, and you probably won’t be able to have a proper environmental assessment done until after the Tax Deed sale which is risky.

Moreover, a Tax Deed is basically an administrative Quit Claim Deed without any warranty of title, and the former owner has 4 years to bring an action to challenge the Tax Deed sale. Therefore, many title insurance companies will require a quiet title action if you decide to sell the property within 4 years of purchasing the property and wish to provide title insurance to your buyer.

On top of all this, the following are some of the interests in real property that survive the issuance of a Tax Deed:
• Easements
• Matters reflected on a plat
• Covenants and restrictions that run with the land
• Mineral reservations
• Federal tax liens
• Subordinate liens which are held by state, municipal, or county governmental units.

Therefore, it would be wise to have a real estate attorney do a title search for the property you plan to purchase well in advance of bidding so you’re aware of any issues before you wind up with a problem.

While many view Tax Deed sales as an easy way to scoop up valuable property at an inexpensive price, if you don’t do your homework beforehand, you might scoop up a headache instead. A savvy real estate attorney can help you navigate the process and choose the right property.

Anthony Velardi is a Martindale-Hubbell A/V Rated attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Anthony’s practice primarily focuses on real estate, land use, and corporate/business law. Questions can be submitted to thelaw@cclmlaw.com.

Dealing with a Problem Tenant or Unwelcome House Guest

By:  J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Are you dealing with a problem tenant or an unwelcome house guest? If so, Florida law provides three mechanisms for removing an individual from possession of real property – eviction, unlawful detainer, and ejectment.

Eviction

The most common way to remove an individual from possession of real property is an eviction proceeding. An eviction proceeding in Florida is governed by Chapter 83 of the Florida Statutes. An eviction is the appropriate proceeding to remove an individual who leased the premises but has violated the lease or has failed to pay rent.

The most common eviction example is against a tenant who has failed to pay rent. In a situation where a tenant has failed to pay rent, the first step in the eviction proceeding is to provide the tenant with a three-day notice. This is a document designed to inform the tenant that he has failed to pay rent and is indebted to the landlord. The three-day notice has certain legal requirements as to its content and method of delivery. If the three-day notice is defective in content or delivery it can significantly delay any eviction proceeding.

Once a three-day notice has been delivered, the tenant has three days (excluding weekends and legal holidays) to pay the demanded rent or to vacate the premises. If the tenant fails to pay the rent, or vacate the premises, the landlord may then file an eviction complaint with the court. Once a tenant is served with an eviction complaint, the tenant has five days to answer the complaint. If the tenant fails to answer the complaint the landlord can seek a default judgment; which would avoid the need for a trial. If a default occurs, the landlord can move for a final judgment and writ of possession to restore them to possession of the property.

If a tenant chooses to contest or defend against the eviction proceeding for grounds other than that the rent has been paid, the tenant is required to pay into the registry of the court alleged rent owed as described in the complaint. If the tenant fails to pay the alleged rent owed, or fails to challenge the rent amount, the tenant waives his defenses and the landlord is entitled to a default judgment in the eviction proceeding and a writ of possession to restore the landlord to possession of the property. A successful landlord is entitled to recover his reasonable attorney’s fees expended in the eviction process.

 

Unlawful Detainer

An unlawful detainer action is governed by Chapter 82 of the Florida Statutes. An unlawful detainer action can be used to remove an individual who is residing in a home, does not have a legal right to the home, and where there was never a lease agreement. The person bringing the unlawful detainer action must have a legal right to the residence or property; that is to say, the person bringing the action must own the property or be the legal tenant of the property.

The most common uses of this type of action involve a significant other who has moved in but a break-up occurs and the significant other refuses to leave, removal of a troubled family member who was invited in to get back on their feet but fails to obey house rules, removal of a friend who was once a welcome guest but has now refused to leave, or even squatters that have moved into a residence without permission.

Unlike an eviction, an action for unlawful detainer does not require specific notices prior to being able to file the action with the court. Like an eviction, an action for unlawful detainer requires the person you are attempting to remove to respond in five days.

The important thing to remember with an unlawful detainer action is that there must not be a landlord-tenant relationship or an agreement for payment of rent. If this kind of relationship exists an eviction proceeding is the proper mechanism for removal.

 

Ejectment

An ejectment action is governed by Chapter 66 of the Florida Statutes. An ejectment action is most commonly used in a similar manner to an unlawful detainer action. Like an unlawful detainer action, ejectment is commonly aimed at girlfriends, boyfriends, family members, friends, or other individuals who have overstayed their welcome where there is no landlord-tenant relationship.

There are two main distinctions between an ejectment action and unlawful detainer action. Ejectment actions are not summary proceedings, meaning ejectment may take longer to reach the goal of removal compared to an eviction or unlawful detainer action. Secondly, an ejectment is the appropriate action when the individual you are attempting to remove may claim some form of entitlement to the property. An example of this would be where the person you are attempting to remove claims some form of ownership of the property.

Florida law provides numerous mechanisms for removal of problem tenants or unwelcome house guests. It can often be difficult to determine which type of action is best for your situation. It is also easy to hit roadblocks throughout the removal process that can significantly delay any removal. If you are faced with taking legal action to remove an individual from your property I recommend hiring an experienced attorney to guide the process.

Matthew Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Moving your Trust to Florida

By:  Kevin R. Album, Esq.

You finally did it.  You worked hard, put the kids through college, saved enough money, and now your movers are packing up a moving truck destined for the warm Florida climate.   When you move to a new state, you will need to find new doctors, new drycleaner, new favorite restaurant, and just about new everything.  One item that is often overlooked amid the chaos of moving your family across the country is making sure your trust moves with you to Florida.  Failure to “pack” your trust for the move could: make the trust administration more challenging for you or the successor trustee, trigger unwanted taxes owed to your previous state, and unintentionally thwart your planning.

The Situs of your Trust and Taxes

Each trust has a domicile, but for trusts we don’t use the term domicile, instead we refer to a trust’s domicile as a trust’s “situs”.  Situs means the location where a trust is located and also where it is subject to jurisdiction for state taxes.  Generally, a trust document names the state you live in when the trust is created as the situs of your trust.  Therefore, when the trust document names a situs, that is the state that holds jurisdiction for taxation of your trust (even after your move to Florida).   If no situs is named in a trust document, then common law and state trust codes will give guidance to the trustee on how to determine the proper situs of a trust.

If you have a revocable trust, a written amendment can be utilized to change your trust’s situs to a new state.  If you have an irrevocable trust (such as a special needs trust, life insurance trust, or charitable trust), you still may be able to change your situs but would likely not be able to amend your trust in order to do so. The most common ways that an irrevocable trust can be revised in Florida are by judicial modification, non-judicial modification, combining multiple trusts into one trust, or decanting (creating a new trust and “pouring” the majority of the contents of the old trust into the new trust). The options available to change an irrevocable trust’s situs will depend on both the language of the trust and what is allowed under Florida’s Trust Code.

Your trust’s situs will determine which state holds jurisdiction for tax purposes.  Florida has no state income tax, no estate tax, and no inheritance tax.  Therefore, it is possible that Florida may have more advantageous tax laws than the state you moved here from.  As a result, when a person moves to Florida, changing the situs of a trust is often desired.   If you don’t transfer the situs of your trust to Florida when you move here, your previous state may claim jurisdiction to tax your trust.

Choosing your Trustee and Personal Representative Wisely

If you named a friend or family member residing in another state as trustee of your trust, they can likely serve as the trustee of your trust in Florida.  However, if a probate is also required, a friend (non-relative) would not be able to serve as the Personal Representative of your Estate when you die as non-relatives that do not reside in Florida usually cannot serve in that role.

If you determine you want a corporate trustee, under Florida law, banks and trust companies must be incorporated under the laws of Florida and have trust powers or else they are not qualified to serve as trustee of your trust.  Therefore, if you named a bank or trust company that is not located in Florida as your trustee, the company may not qualify to serve as the trustee of your trust. The failure to have a proper trustee or successor trustee in place for a trust leads to the appointment of a new successor trustee by either the beneficiaries of the trust or a court holding jurisdiction over the trust.

Homestead in Trust

If you purchase a home in Florida and reside there, you likely will file for a homestead tax exemption with your local property appraiser’s office to save money on your annual real estate taxes.  However, Florida’s homestead laws also have restrictions on the devise of a homestead property.  For example, if you purchased your Florida home in the name of your out-of-state trust, you may have unintentionally made an improper devise of the Florida home to your trust that could result the Florida home being pulled out of your trust and subjected to probate in Florida after you die. If you have improperly devised your Florida home to your trust, it can usually be corrected to meet your wishes by amending the trust and/or by executing new deed(s) that accomplish your estate planning goal for the property.

When moving to Florida with an out-of-state trust, it is prudent to have an estate planning attorney review your trust to see if there are any items that need to be updated to ensure your wishes are met, and there is no added strain upon the trust’s administration resulting from your move to Florida.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

Dissension in the Ranks: The Basics Surrounding HOA Election Challenges

By: Dan Rich, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Few things generate more animosity and drama within a homeowners association, or HOA, than contested board of director elections. This tension may result in residents seeking legal action against the HOA in the form of an election contest. Sadly, most HOA residents have zero clue about the rules regarding an election contest; however, this article will hopefully shed some light on the basics surrounding HOA election contests in Florida.

So where do we begin? Florida law states that any election dispute or challenge in the homeowners association context must be submitted to mandatory arbitration with the Florida Department of Business and Professional Regulation, or DBPR.
The window for submitting an election contest is not open for long. Instead, Florida law provides that any person who wishes to challenge an HOA election must file their petition for arbitration with DBPR within 60 days of the election results being announced. The announcement almost always occurs at the election itself, which means that the clock starts ticking the second the meeting concludes.

Florida law goes on to provide that prior to filing an arbitration petition with DBPR, the resident must also provide his or her HOA with the following: (a) advanced written notice of the specifics regarding the dispute; (b) a written demand for relief, and a reasonable time for the HOA to provide said relief; and (c) notice of the resident’s intent to file an arbitration petition in the absence of a resolution. If the resident fails to comply with these three requirements, then DBPR will be forced to dismiss the election challenge.
Often times, the “written notice of the specifics regarding the dispute” is initially founded upon rumors, hearsay and mere hunches. To avoid basing your HOA election challenge on speculation, it is generally recommended that the disgruntled resident investigate the accuracy of the information prior to filing the arbitration petition with DBPR.

You may be asking yourself, why should I take the time to investigate? This answer is simple. Florida law provides that the prevailing party in a DBPR election contest is entitled to recover from the losing party all of his or her attorneys’ fees and costs.
To minimize this risk, Florida law provides that any resident of a HOA can inspect the official records of the association. Florida law mandates that election materials, such as ballots, proxies and the sign-in sheet be preserved for inspection by residents who request to review the documentation. Once a request is submitted the HOA must make all requested materials available within 10 days. Then, the requestor must take time to review the documents, which often times requires a time commitment based on the sheer amount of papers involved.

The importance of confirming the basis for any election challenge is imperative, but it narrows the 60-day timeframe that a resident has to file their petition. Therefore, that is why I recommend that

a resident seeking to challenge an HOA election, or an HOA facing an election challenge itself,
seek the advice of a knowledgeable attorney who can help navigate the complexities of an election
challenge under Florida law.

Dan Rich is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in
Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Code Enforcement Liens

By: Anthony A. Velardi, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Q: A code inspector recently notified me about a code violation concerning my property. What is the process of enforcing a code violation?

A: Chapter 162 of Florida Statutes sets forth the various ways in which a local government body, such as a city, can enforce code violations, such as by imposing a fine which may continue to accrue on a daily basis. A code enforcement board is usually comprised of 7 members with 2 alternate members and should include an architect, businessperson, engineer, general contractor, subcontractor, and realtor.

The process usually starts with a disgruntled neighbor calling code enforcement, and a code inspector initiates the investigation. If a violation is found, the code inspector is required by law to notify the violator, and the code inspector is required to give the violator a reasonable time to correct the violation, unless the violation presents a serious threat to public health, safety, and welfare or if the violation is irreparable or irreversible in nature.

Typical code enforcement violations may include, but are not necessarily limited to, noxious odors or fumes emanating from your property, neglecting to mow your lawn, failing to secure buildings, parking derelict vehicles, failing to remove debris, placing improper signage, and possessing certain farm animals within city limits on your property.

If the violation continues beyond the time specified for correction, the code inspector notifies the enforcement board and requests a hearing. Notably, if a repeat violation is found, the code inspector is required to notify the violator but is not required to give the violator a reasonable time to correct the violation.

After the hearing, the code enforcement board is required to issue findings of fact based on evidence and law, and the code enforcement board issues an order. If the code enforcement board imposes a fine and the violator does not pay the fine by a certain date, the local government body may record in the public records a certified copy of an order imposing the fine.

The recorded order then becomes a lien against the land on which the violation exists and notably upon any other real or personal property owned by the violator. Therefore, if you have a code enforcement lien against Property A which you own and desire to sell Property B which is not in violation but located in the same county, technically the code enforcement lien attaches to Property B, unless Property B is your homestead. Furthermore, a code enforcement lien held by a municipal or county governmental unit survives issuance of a tax deed unless satisfied of record or otherwise barred by law.

If the code enforcement lien is not paid within 3 months after the date of recording, the local government body may foreclose on the lien or sue to recover a money judgment for the amount of the lien plus accrued interest, and a local government body, such as a city, has 20 years from the date of recording of the code enforcement lien in the public records to file its foreclosure lawsuit.

Anthony Velardi is a Martindale-Hubbell A/V Rated attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Anthony’s practice primarily focuses on commercial and residential real estate, land use, and general corporate/business law. Questions can be submitted to thelaw@cclmlaw.com.

Pets and Estate Planning

By: Clark, Campbell, Lancaster & Munson, P.A.

When we think about estate planning, we generally focus on our family and friends, but what about our pets that may outlive us? We would like to think that our family and friends will want to care for our pets upon our death, but this is not guaranteed. This article is a general overview of steps that you can take to more effectively ensure that your pets will be cared for in conformance with your wishes during your lifetime and upon your death.

Q: My friend expressed that she will care for my pets if anything were to happen to me, should I still include my pets’ care in my estate planning?

A: Yes, in your Last Will and Testament (“Will”), you should give your pets to your friend. However, keep in mind that your friend may ultimately change her mind, or alternatively, your friend may predecease you. At the very least, you should consider naming alternates to care for your pets.

Q: How does a Will effectuate my wishes concerning my pets’ care?

A: A Will reflects your intent concerning your pets’ care, but the directives are not enforceable. While we may consider our pets a companion or a member of our family, by law, our pets are considered property. Pets can be conveyed through a Will like any other type of property that you may own. However, as property, a beneficiary can also disclaim or refuse to accept ownership of your pet. For example, in your Will, you give your pets to your friend, but shortly after your death, your friend discovers that she is severely allergic to your pets, and a result, she refuses to accept ownership of your pets.

Q: Is there anything else I should be concerned about if I were to rely solely on a Will regarding my pets’ care?

A:  Yes.  A Will does not consider the care of your pets during your lifetime and may not be immediately effective upon your death. For instance, you are determined to be incapacitated and you are subsequently admitted to a nursing home. The Will does not direct your pets’ care while you are incapacitated. Further, if your estate is subject to probate, a Will does not direct your pets’ care during the probate process. For these reasons, you may want to supplement your Will with a pet trust.

Q: What is a pet trust?

A: Florida, like most states, has adopted pet trust statutes. A pet trust is a legal arrangement concerning your pets’ care during your lifetime and upon your death. The trustee of a pet trust will hold funds for the benefit of your pets and will disburse such funds to a designated caregiver of your pets. The benefit of a pet trust, in contrast to a Will, is that a pet trust is enforceable, specific, effective during your lifetime and upon your death, and allows you to have control of your pets’ care with the oversight of a trustee after your death. In Florida, a pet trust will not terminate until your pets’ death, unless you direct otherwise.

Q: Is there anything else I should consider when formulating my pets’ care in my estate planning documents?

A: Yes. Due to the reasons discussed above, consider naming a rescue organization as a last resort to care for your pet. Additionally, you may want to consider naming not only the pets that you currently have, but also reference any pets you may acquire in the future. Finally, a pet trust can be as general or specific as you desire. For example, in a pet trust, you could direct the type of food your pets will be fed or which veterinarian will be used for your pets’ health issues.

If you wish to direct your pets’ care in your estate planning documents or wish to set up a pet trust, it is advisable to seek counsel from an estate planning attorney.

Homestead: More than Just a Property Tax Exemption

BY: Kevin R. Albaum, ESQ.
Clark, Campbell, Lancaster & Munson, P.A.

Most people know that there is a tax break available to them on their home (house, condominium, co-ops apartments, and some mobile home lots also qualify).  The way it works is that a tax exemption can be applied for at the local property appraiser’s office on a person’s home if the person owns and lives in the home that they are trying to obtain the exemption on by January 1 of the year they are trying to claim the exemption.

The tax exemption provides that the first $25,000 of the assessed value is exempt from real property taxes and the third $25,000 of the assessed value is exempt as well.  The tax exemption provision is a nice perk provided by the Florida Constitution (Article VII, Section 6) to Floridians and can easily save a Polk county resident hundreds or possibly over $1,000 per year in property tax owed.  However, the property tax exemption provision is just one of the benefits of owning a homestead property in Florida.

So, what exactly is a homestead?  Article VII of the Florida Constitution further explains the property tax exemption and defines homestead as real estate held by a person who maintains title to the property and maintains permanent residence thereon. Further, you only get one (1) homestead property per individual or family unit. The Florida Constitution has another provision on homestead property (Article X, Section 4) which adds that for creditor protection, homestead property can be up to 160 contiguous acres outside of a municipality or up to (1/2) one-half acre if the residence is located within a municipality and owned by a natural person.  Article X goes on to add restrictions on the devise of a homestead property if you have a spouse or minor child.  For example, if you are married and own a house (in your name only) but your spouse lives in your house, it is likely that you cannot convey the homestead property without your spouse signing the deed as well.

Is my homestead protected from creditors?  Specifically, if your property qualifies for homestead status and fits within the definition under Article X, regardless of the home’s value, it is exempt from the forced sale by any court and protected from judgments of your creditors (except for the payment of tax liens, mechanic’s liens, HOA liens or mortgages).  For example, if you get a new roof put on your house and don’t pay the roofer, you will most likely not have homestead creditor protection against the roofer.  Additionally, if a person files for bankruptcy, a different set of rules for creditors pursuing the homestead property will also apply.

Can I transfer my homestead to my trust or my business?  Many Florida court cases have found a revocable living trust can own a natural person’s homestead property and maintain Article X creditor protections.  However, many other entities and types of trusts cannot own a homestead property and also maintain creditor protection.  For example, you can’t transfer your home to your limited liability company and expect to maintain homestead creditor protections for your home if your limited liability company is sued in the future.

Calling Florida’s homestead laws complex would be a drastic understatement and when questions arise regarding whether or not your home: 1) Qualifies for the Article VII tax exemptions; 2) Qualifies for the Article X creditor exemptions or 3) Has Article X restrictions on whether or not there are restrictions on devising the property, it is always best to speak with an attorney who has experience in this area to look at your specific situation and properly advise you on your home.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.