What If A Deceased Person Owes You Money?

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

When a person owes you money and dies, all is not necessary lost and the funds can still be recovered at times from the deceased person’s probate estate if proper procedure is timely followed by you as the creditor.  If a person dies and has assets that are subject to probate administration, any creditor of the deceased person may prepare a written “Statement of Claim” in an attempt to recover from the deceased person’s estate.  The Statement of Claim is then filed in the probate case of the deceased person. The Statement of Claim should include the following information: the basis of the claim; the name and address of the Claimant (and their attorney, if any); the amount of the claim; when the amount is due or will become due; if the debt is contingent or unliquidated; and if the debt is/is not secured.

When a Statement of Claim is timely filed in a probate case, the person administering the probate case (or their attorney) will have to resolve the claim by either: paying the claim, objecting to the claim, paying a portion of the claim, or not paying any of the claim if the estate has insufficient assets to pay the claim. If a Statement of Claim is not timely filed, the claim will be forever barred. Therefore, it is very important to understand the legal deadlines of when creditor claims are time barred and to act fast to file a Statement of Claim when a person who owes you money dies.

What If There Is No Probate, Can I Still File A Statement of Claim?

If no one comes forward to start a probate case, a Statement of Claim cannot be filed as there is no one in place to resolve the deceased person’s debts.  However, a document known as a “Caveat” can be filed with the probate court in the county where the deceased person resided at the time of their death.  The Caveat is a written notice to the court that acts as a bookmark so that the person who filed the Caveat, known as the “Caveator”, is notified if any probate case is filed in the deceased person’s name. When a creditor files a Caveat, the Clerk of Court is required to notify the creditor if a probate case is initiated and to provide the creditor with contact information for the person who initiated the probate proceedings.  Generally, after a creditor is notified of a probate case being opened, at that time, the Statement of Claim would then be prepared and filed in the probate case by the Caveator.

A Caveat is not just for creditors but also can be used by any interested person who is apprehensive that a probate case will be administered without their knowledge or any family member of the deceased person who is concerned they will not be notified by the rest of the family when a probate proceeding occurs.

If a deceased person owes you money, it is recommended to discuss your options with a probate attorney to determine whether it makes sense to file a Statement of Claim or Caveat and whether it is likely you would be able to recover from the deceased person’s estate.

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.

When does a gathering of directors result in a homeowner’s association Board meeting?

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

Some of the most frequent questions I face in my representation of homeowner’s associations, or “HOA’s”, relate to whether a gathering of directors is considered a “Board meeting” that must comply with the formalities outlined in Chapter 720, Florida Statutes. These questions usually arise when unit owners complain that the Board is conducting business behind closed doors at meetings that were not properly noticed. In an effort to help both HOA Boards and unit owners better understand the legal definition of a “Board meeting” and its ramifications, I address some of the most common questions I receive below.

What is the legal standard for a HOA Board meeting? Section 720.303(2)(a), Florida Statutes, defines a Board meeting as any gathering for the purpose of conducting association business by the members of the Board of Directors at which a quorum is present. Typically, an HOA’s governing documents will specifically define what number of directors constitutes a “quorum”; however, the general rule of thumb is a majority of the members of the Board constitutes a quorum. Board meetings at which association business is conducted must be open to all unit owners, and proper advance notice of the meeting also must be provided to the unit owners, except in limited cases of emergency.

Can a HOA Board hold private meetings? Florida law provides two (2) limited exemptions to the above-referenced requirement to hold open Board meetings. Currently, unit owners can be restricted from attending Board meetings only when the Board is meeting with the HOA’s attorney to discuss proposed or pending litigation or the Board is meeting for the purpose of discussing personnel matters. Please note that in order to satisfy the attorney exemption, listed above, the HOA’s attorney must be present either in person or via telephone.

Can the Board restrict member participation at an “open” Board meeting? Chapter 720, Florida Statutes, expressly provides that unit owners are allowed to speak on all agenda items during a Board meeting; however, Florida law also permits HOA’s to adopt rules that regulate unit owner participation. Typical rules may restrict the amount of time that a unit owner can speak on any given agenda item (i.e., three minutes per agenda item), or provide that no unit owner may speak more than once until all other unit owners have had an opportunity to do so. Once rules are established, consistent enforcement of said rules is crucial even if it means using a watch, cell phone timer or gavel.

Can HOA directors ever get together to socialize? It is not illegal for directors constituting a quorum to socialize while limiting the conversation to the weather, the news or sharing photos of each other’s recent vacations – i.e., non-association business. However, directors must be aware that a gathering of a quorum of members of the Board – even at a purely social event– creates the risk that a disgruntled unit owner might accuse the Board members of improperly conducting a Board meeting in violation of Chapter 720.

To summarize, Chapter 720 does not prevent Board members from socializing or require that a notice must be posted every time a group of Board members might want to go out to eat or play a round of golf. Instead, the law simply provides that a gathering of a quorum of Board members whereat the Board members discuss HOA business or engage in discussions about the needs of the community must occur only in a properly-noticed Board meeting.

The above questions are only examples and are not intended to address all potential scenarios. Therefore, if you have a specific question, you should consult an attorney who has particularized knowledge regarding this aspect of HOA 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.

Social Media and Your Case

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

In the United States some eighty-one percent of people have some form of a social media profile. Social media is a great way to share your life with friends but it is increasingly becoming a source of evidence in legal proceedings. It is not uncommon to see that a Facebook post was the reason for the apprehension of a criminal suspect but social media is also playing a large role in civil litigation.

Gathering the Evidence
The first mechanism an attorney or investigator may use in attempting to gather social media evidence is by simply searching the individuals name. Many people do not have their social media profiles set to private which allows for a simple search of the individuals name on the leading social media websites to lead to a wealth of personal information including information that may be damaging to your case.

However, many individuals do have some level of privacy enabled on their social media accounts. In this case profiles can still be exposed by sharing content with friends who do not have strong privacy settings or through the ordinary means of discovery in a lawsuit.

In a civil proceeding, a party may obtain discovery regarding any matter that is relevant to the lawsuit, as long as such information is not protected by some form of privilege. Florida courts have already held that pictures from Facebook and other social media postings are discoverable in lawsuits. This is even true if the individual has enacted the strictest of privacy settings. Courts in Florida have effectively acknowledged that one who creates a social media account accepts that their personal information will be shared with others regardless of the user’s privacy settings.

Authenticating the Evidence
In court proceedings, it is one thing to gather the evidence and another thing to get that evidence admitted into a proceeding to be used by the judge or jury to render a decision. While discovery allows for broad requests of information, admitting a social media post at a proceeding must meet a more exacting standard.

In order for any evidence to be admitted, including social media posts, the evidence must be authenticated. The courts want to be as certain as possible that what is being admitted is not a forgery or altered in any way. This is usually done through a series of questions to a witness which include how the post was copied or saved from the website, who made the post, and who has personal knowledge that a certain individual made the post. These questions can address any other identifying features of the proposed social media evidence. Additionally, Florida courts have begun to allow expert witnesses such as internet consultants to assist in the authentication of website evidence.

Protecting your Information
The first thing everyone should do in order to better protect social media information is to make sure you take advantage of the privacy features offered by the service itself. Just as important as your own privacy settings, it is also important to ensure that those who you share information with also have strict privacy settings activated.

However, as previously explained privacy settings will not protect your information from discovery requests. The only way to truly prevent a social media post form being used as evidence is to not make the post. If you are posting something that is related or could be related to a lawsuit ask yourself if you would want the picture or post to be seen by a judge or jury. If the answer is no, do not post it. While we all want to share our lives with our friends and family, if for example you have a pending personal injury matter, the insurance company would likely be very interested in your vacation pictures as well.

Finally, once something is posted on the internet it is never really deleted as archives of the internet are being continuously made which take snapshots of the internet at certain times. So even if your post is deleted it is likely archived and may still be discoverable.

J. 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.

Know Your Contractor Before You Hire

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

Q: I was thinking about hiring a contractor to do some work on my house, but I’ve heard horror stories about unlicensed contractors doing shoddy work and running off before the work is finished. What can I do to protect myself?

A: A “contractor” is any person who constructs, repairs, alters, remodels, adds to, demolishes, subtracts from, or improves any building or structure for compensation, including related improvements to real estate. For example, you’ll need a licensed contractor if your remodel entails the alteration or replacement of a load-bearing wall for compensation, but a person doesn’t need to be licensed to paint or install cabinets, wood/tile flooring, or insulation regardless of compensation.

If the work being done to your home requires a licensed contractor, your first step should be to verify your contractor is licensed to do the particular work. All licensed contractors are regulated by the Florida Department of Business and Professional Regulation (DBPR). You should verify your contractor’s license by going to www.myfloridalicense.com/dbpr and clicking on the Verify a License tab. You may search using the contractor’s name or license number, or you may search by license type or do a general city or county search. You may also call the DBPR Customer Contact Center at (850) 487-1395 to verify your contractor’s license is active. Ask your contractor for references to verify and check your contractor’s previous work.

There’s a difference between whether a contractor is “certified” or “registered.” A “certified” contractor is licensed by the State of Florida and may operate in any city or county in Florida. A “registered” contractor is licensed by a particular city or county after taking and passing a local competency examination and may operate only in the city or county of registration and any other neighboring locales which accept the contractor’s registration.

The Construction Industry Licensing Board licenses individuals for construction work, and the Electrical Contractors’ Licensing Board licenses individuals for electrical work. If you discover your contractor isn’t licensed, you can report the unlicensed activity by calling the Unlicensed Activity (ULA) Hotline at (866) 532-1440 or emailing ULA@myfloridalicense.com.

Licensed contractors are authorized to perform work only within the scope of their license. Some of the different license categories include, but are not limited to, the following:

  • Air conditioning
  • Building
  • General
  • Mechanical
  • Plumbing
  • Pool/spa
  • Roofing
  • Solar.

You should also make sure your contractor carries all required insurance. In order to receive a general contractor’s license in the State of Florida, a general contractor must carry minimum general liability insurance of $300,000 for bodily injury and $50,000 for property damage. All other categories must maintain a minimum of $100,000 liability and $25,000 for property damage, or in amounts as defined by the Board. Ask your contractor for a copy of their Certificate of Insurance showing at least these minimum insurance coverages as well as workers’ compensation insurance before your contractor commences any work on your property.

Be aware that commercial general liability insurance policies do not insure the contractor against defective workmanship or work incorporating defective products or materials. Also, most homeowners’ insurance policies won’t provide coverage for damage to your home caused by defective workmanship.

There are many different forms of contracts used by contractors, and they’re typically written from a contractor’s perspective instead of a homeowner’ s perspective. Therefore, you should have an attorney review your construction contract before you sign to ensure you’re protected.

Anthony Velardi is a Martindale-Hubbell AN 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.

Loved one is now deceased, what should we do?

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

As an estate planning and probate attorney, I often encounter the following question… What happens to my remains when I die? Usually, this question causes little or no concern to me as the majority of families agree on funeral, burial, and/or cremation plans for their loved one and will honor the wishes provided by the deceased person for the final resting place. However, occasionally there is a family dispute over what the deceased person intended for their final resting place or which person should get possession of the deceased person’s remains.

A person generally devises their property at death by using a Last Will and Testament or a Revocable Living Trust. Administering a probate or a trust disposes of the deceased person’s property. However, a deceased person’s bodily remains are not considered property under Florida law and bodily remains cannot be disposed by Last Will and Testament. Often times, a person will express their intent to their family and friends regarding their wishes for burial or cremation and sometimes that intent is written down or included in a Last Will and Testament. An intent shown in a Last Will and Testament (or other writing) for disposition of a person’s bodily remains generally should be honored. Any dispute over a deceased person’s bodily remains shall be resolved by a court of competent jurisdiction (often the county where the deceased person resided at time of death).

The person in charge of coordinating the funeral, burial, or cremation plans of a deceased person is the legally authorized person under Florida law. There is a priority ranking system to determine which person has the authority to plan funeral, burial, and cremation services and the order goes as follows:

1. Deceased person’s written direction
2. A person appointed in written military directive
3. The surviving spouse (except in limited circumstances such as domestic violence)
4. An adult child
5. Deceased person’s parent
6. An adult sibling
7. An adult grandchild
8. A grandparent
9. Other relative

Therefore, if a deceased person has provided written instructions regarding funeral, burial, or cremation, those wishes should be honored by the family. If no instructions were left behind, you would follow the priority rankings above to see who the legally authorized person should be to make decisions for the deceased person’s bodily remains. If the person with highest priority chooses not to help coordinate the arrangements, then the next person listed in the priority rankings will often make those decisions. The funeral establishment is required to rely upon the authorization of any one legally authorized person of that class if the person represents that she or he is not aware of any objection to the disposition of the deceased person’s bodily remains by others in the same class of the person making the representation or of any person in a higher priority class.

Additionally, the legally authorized person is not required to use their own resources to personally pay for the deceased person’s funeral, burial, or cremation and often times the deceased person will have prepaid for the arrangements during their lifetime. If there were no prepaid arrangements made by the deceased person, the family often decides to pay for the costs out of their own resources.

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.

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.