Real Estate Law Article

The Basics of Platting Property

When purchasing property, it is likely that one of the documents you come across will be the plat of the property that you’ve purchased. Plats are useful tools in land planning and have been used to map and describe land and everything located on that land including lots, roads, and property boundaries. Understanding what a plat is can be helpful when you are purchasing real property that is subject to a plat. 

First, why would someone choose to plat property at all? Platting provides a number of benefits to real property owners that could otherwise be more cumbersome. Sometimes when subdividing property into a certain amount of lots, local government regulations will require that it is platted. Since the platting process is done cooperatively with local governments, the lots created by the plat will be compliant with the local government’s zoning and land development regulations. This can include minimum lot sizes, lot geometry, and lot density (density meaning the number of lots allowed per acre of land). Therefore, future purchasers of the lot won’t have to worry about their lot not conforming to local government regulations. 

There are other benefits that platting property can provide. Platting can ensure that every lot created within a plat has access to a publicly or privately maintained road so that each lot owner has access to their respective lot. It can create easements that are essential to provide electric utilities, water utilities, stormwater management, or sanitary sewer services to each lot. Platting also creates new legal descriptions for the lots, making the transfer of lots to future owners a more efficient process. 

In addition to local land development regulations, platting is also highly regulated by Florida law. Section 177, Florida Statutes, regulates platting in the State of Florida. Just a few of these regulations include the naming of plats, qualifications and statements required on plats, procedures for receiving approval on plats, and dedication requirements. 

Platting is a multi-disciplinary process that will sometimes require real property owners to engage the services of a surveyor, engineer, and attorney just to complete a plat. Each party must work in concert with local government officials in order to make sure every single local and state law is followed before a plat can be recorded in the public records. The requirements mentioned above are just a few of the many requirements necessary to record a final plat. As always, if you have questions about a plat, or think you may need to plat your own property, the best course of action is to speak with a local attorney about the best path forward. 

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

Estate Category

Preparing your Estate Plan During a Pandemic

As a result of the surge of COVID-19 cases throughout Florida recently, many Floridians who had not considered getting a last will and testament prepared or not previously contemplated their mortality are now seeking to get their legal affairs organized quickly. While most people only have mild symptoms of COVID-19, it does not hurt to be prepared by having your estate plan in order. I’ve always felt strongly that everyone should have at least a basic estate plan, regardless of the COVID-19 outbreak, so a person’s wishes will be honored in the event of death, incapacity or a health crisis. Having an estate plan implemented is meant to ease concerns by knowing who will be in charge and what will happen if something unexpected happens to you or your loved ones. 

As of May 1, 2020, Traditional estate planning meetings between clients and their lawyers are still occurring during the pandemic in many lawyers’ offices. Additionally, many lawyers are now offering their estate planning meetings with clients to transpire via telephonic or video conferencing instead of the common in office meeting to practice social distancing recommendations. Traditional document executions in lawyers’ offices are now taking place not only in lawyers’ offices but also in client’s homes and some documents are now even being executed remotely utilizing electronic notarization (electronic notarization for many estate planning documents became legal in Florida on January 1, 2020). 

Additionally, some individuals have turned to online legal document building websites to help them draft estate planning documents through online legal technology companies that help customers create legal documents. Florida law requires very specific requirements to draft and execute documents such as wills, deeds, powers of attorneys, health care surrogate designations and trusts so it is important to make sure proper execution procedures are followed to ensure documents are valid at execution. 

Regardless of path chosen to get estate planning documents in place, I recommend at a bare minimum for individuals age eighteen (18) or older to have a basic estate plan. A basic estate plan would include documents such as: a durable power of attorney, health care surrogate designation, living will, HIPAA release and last will and testament. It is probably also prudent to spend some of this down time at home looking at the current titling and beneficiary designations of your assets and making sure your assets are titled as you wish. 

Whenever configuring an estate plan, it’s important to meet and discuss with a qualified estate planning lawyer where you plan what will happen to each of your assets upon your death to ensure that your estate planning goals are accomplished at the time of death. 

Kevin R. Albaum is a shareholder with the law firm of Clark, Campbell, Lancaster & Munson, P.A., in Lakeland. Questions can be submitted to thelaw@cclmlaw.com 

Corporate Law Article

Registered Agents

If you are starting the process of forming a business in Florida, you will need to familiarize yourself with all the requirements. One of those requirements is to designate a registered agent for your business. 

In Florida, every business entity is required by law to have a registered agent. A registered agent must either be Florida resident or a business entity with an active Florida filing or registration. An entity cannot serve as its own registered agent, but an individual or principal associated with the business may serve as the registered agent. 

The responsibilities of a registered agent are to receive official legal documents, papers and notices on behalf of your business. Therefore, the registered agent must have a physical street address in Florida. They must be available during standard business hours in order to receive important legal notices or accept service of process. 

There are a few factors to consider when deciding who to name as your registered agent. If your business has a physical street address located in Florida and is open during business hours, you can actually serve as your business’ registered agent. If you don’t have a street address in Florida, you can ask someone close to you, such as a family member or your lawyer to serve as your business’ registered agent. If you don’t have anyone in Florida wiling to serve as your registered agent, you can hire a Florida registered agent service company. 

When weighing all of your options, make sure to consider the importance of receiving legal documents that may have a response deadline. If a person who serves court documents and notices of lawsuits (also known as a process server) is unable to reach your registered agent, a law suit can proceed in your absence and you may not even know about it. Missing important information regarding tax payments, lawsuits, or judgments involving your business could lead to serious financial and legal consequences. Make sure to immediately update your registered agent if there is a change in address or if you designate a different person or entity. 

The many decisions that business owners must make can be challenging, but consulting with a local attorney is always the best option to make sure your personal and business needs are met. 

Corporate Law Article

Transferring Real Property Between Subsidiaries

A common approach many businesses take is to create one holding company, and that holding company owns a number of different companies underneath it, usually called subsidiaries, with each subsidiary being a different business venture by the primary holding company. One issue that may arise when transferring properties between subsidiaries is whether documentary stamp taxes are due on those transfers. Documentary stamp taxes were discussed in an article several months back, and a full list of what is subject to documentary stamp taxes can be found in Section 201.01, Florida Statutes (2019). There are several documentary stamp tax considerations to keep in mind when transferring real property between a holding company and any of its subsidiaries.

 Many businesses will own property through multiple subsidiaries in order to reduce the liability of the holding company. These subsidiaries are what the State of Florida has defined as “conduit entities.” When property is transferred or conveyed between conduit entities that are owned by the same holding company, there typically are no documentary stamp taxes due on the transaction. 

 A former loophole to this process was by selling the ownership interests in a conduit entity after a transfer of real property had occurred. For example, Conduit A and Conduit B are both 100% owned by Holding Company A. Conduit A transfers real property to Conduit B. Documentary stamp taxes aren’t due on this transfer because both Conduit A and Conduit B are wholly owned by Holding Company A. Holding Company A then sells the ownership interests in Conduit B to a third party. Are there documentary stamp taxes on this transaction? Under the old statutory regime, the answer was no. 

 The State of Florida recognized this loophole and has since removed it. Now, when real property is conveyed to a conduit entity, and then all or a portion of that conduit entity’s ownership interests are subsequently transferred within three years after the real property conveyance, documentary stamp taxes are imposed on the transfer of interests in the conduit entity at the usual documentary stamp tax rate. 

 There are general exceptions to this rule. A gift of an ownership interest in a conduit entity is not subject to the tax. The transfer of shares or similar equity interests in a conduit entity which are dealt in or traded on a public, regulated security exchange or market is not subject to tax. Lastly, there are exceptions when a natural person owns a portion of the interests in the conduit entity and transfers them for estate planning purposes. All of these exceptions have more complicated statutory or case law requirements that are important to understand before claiming an exception. 

Documentary stamp taxes can be very technical. If you are engaging in a transaction where you think documentary stamp taxes aren’t due, the best course of action is to consult with an attorney to make sure this is the case. 

Real Estate Law Article

Remote Online Notarization

With a new year came a new change to the Florida notary statute. Beginning on January 1, 2020, remote online notarization procedures are now authorized for real estate closing documents and other documents that require a notary acknowledgment. Previously, a notary and a person signing a document requiring a notary acknowledgment had to be in the same physical location and in close proximity to each other. In recent years, technology has progressed to the point where some documents could be executed electronically by both the signatory and the notary, but both parties still had to be in the same location. However, the same location and close proximity are no longer required with the new change. 

The Florida Statutes define online notarization as the performance of a notarial act using electronic means in which the principal appears before the notary public by means of audio-video communication technology. Such communication technology must meet certain statutory requirements and must provide for real-time, two-way communication using electronic means in which participants are able to see, hear, and communicate with one another. Online notaries will contract with third-party provides for this communication technology and the related services necessary for remote online notarization. These third-party providers will also provide credential analysis and identify proofing, which are both required when an online notary does not personally know the person signing a document. Credential analysis affirms the validity of a government-issued form of identification, and identity proofing affirms the identity of an unknown individual through a knowledge-based authentication process consisting of 5 questions about the unknown individual from public and proprietary sources. 

In addition to these technology requirements, someone who is already a notary must also satisfy other requirements before they are authorized to serve as an online notary public. These additional requirements include: completing a course covering the duties, obligations, and technology requirements for serving as an online notary; submitting an online notary registration to the State of Florida; identifying the third-party provider that the online notary intends to use, and confirming that the chosen provider satisfies the statutory requirements; and providing proof of a $25,000 bond and errors and omissions insurance covering acts as an online notary. 

One of our experienced attorneys can help you with your notarization questions, as well as closing your real estate transactions. 

Real Estate Law Article

The Benefits of Hiring an Attorney When Purchasing a Home

 When purchasing a home, many legal issues can arise. Hiring an experienced real estate lawyer who is trained to handle the purchase and sale of real property is helpful to navigate the process. 

One of the most important aspects of any real estate deal is the contract. Although standard real estate forms may be used, an attorney can help you understand certain terms that can be confusing. They may also recommend the addition of specific language to reflect the buyer and seller’s agreement and wishes. Attorneys will work with your real estate agent in negotiating contractual terms on your behalf. It is important to ensure that your contract is in compliance with all state laws and county ordinances, and it should address any specific problems that might affect the future use of the property. 

Another important part of a real estate transaction is title insurance. Once you have signed the contract, you will need to obtain title insurance to ensure that the property is free of any encumbrances, such as liens or judgments, that would prevent the seller from having marketable title. A real estate attorney will examine recorded documents affecting title to the property, and then apply the Florida Uniform Title Standards to any title problems that arise during this review. Your attorney can explain the effect of any easements on the property as well as prior agreements or restrictions that were enforced by a prior owner. If the search reveals something problematic relating to title on the property, your attorney can advise you on how to proceed. 

Once you are ready to close on the property, your attorney can prepare all the important closing documents, such as the deed and the closing statement. Your attorney can help you understand the nature and amount of the closing costs, as well as provide advice as needed should any issues arise during the closing process. Once the deed and the mortgage paperwork are signed, your attorney can file and record these documents in the applicable county according to state law. 

Obtaining an attorney is extremely beneficial when it comes to the intricacies involved in real estate transactions. Buying a home is one of the largest purchases you will ever make. An experienced real estate attorney helps to represent your best interests and ensures that the entire process follows the applicable laws of Florida and the county in which the property is located. 

Estate Category

Secure Act and Its Impact on Retirement Plans

 On December 20, 2019, the President signed into law the “Setting Every Community Up for Retirement Enhancement” Act (the SECURE Act). The Secure Act modified many requirements for employer-provided retirement plans, individual retirement accounts (IRAs), and other tax-favored savings accounts. Most of the provisions go into effect this year (2020). Now is a good time to review and consider how these new rules may affect your tax and retirement-planning situation. 

Below is a brief overview of some of the key provisions of the Secure Act that may act on an individual’s retirement planning and tax and estate planning. 

Elimination of any age restriction for traditional IRA contributions. 

Prior to 2020, once an individual attained the age of 70 ½, he or she were not allowed to make traditional IRA contributions. Beginning in 2020, the Secure Act allows an individual of any age to make contributions to a traditional IRA, as long as the individual is working and has earned income. 

Required minimum distribution (RMD) age raised from 70½ to 72. 

Before 2020, retirement plan participants and IRA owners were generally required to begin taking RMDs, from their plan by April 1 of the year following the year they reached age 70½. For distributions required to be made after Dec. 31, 2019, for individuals who attain age 70½ after that date, the age at which individuals must begin taking distributions from their retirement plan or IRA is increased from 70½ to 72. 

Reduction of Stretch IRAs. 

For deaths of plan participants or IRA owners occurring before 2020, beneficiaries (both a spouse and non-spouse) were generally allowed to stretch out the tax-deferral advantages of the plan or IRA by taking distributions over the beneficiary’s life or life expectancy (in the IRA context, this is sometimes referred to as a “stretch IRA”). However, for deaths of plan participants or IRA owners beginning in 2020 (later for some participants in collectively bargained plans and governmental plans), distributions to most non-spouse beneficiaries are required to be distributed within ten (10) years following the plan participant’s or IRA owner’s death. This change eliminates the ability to “stretch” out the tax deferral over the beneficiary’s life. 

This 10-year rule requirement does not apply for distributions to (1) a surviving spouse of the account owner; (2) a minor child of the deceased account owner; (3) a disabled or chronically ill individual; and (4) any other individual who is not more than ten years younger than the account owner. These beneficiaries who qualify under this exception may generally still take their distributions over their life expectancy (as allowed under the rules in effect for deaths occurring before 2020). 

In addition to the foregoing changes, the Secure Act made the following changes and/or additions: (a) tax free or qualified distribution from a Section 529 savings plans to cover registered apprenticeships and to repay qualified student loans; (b) plan distributions (up to $5,000 per individual (or $10,000 for married couple)) used to pay expenses relating to birth or adoption for expenses related to the birth or adoption of a child are not subject to the 10% early withdrawal penalty for individuals under age 59 ½; (c) taxable non-tuition fellowship and stipend payments are now allowed to be treated as compensation for IRA contribution purposes, and therefore, the payments may be contributed by the individual to an IRA; (d) allow annuity and lifetime income option within employer plans; (e) incentives for business owners with 100 or fewer employees to establish a retirement plan (tax credits are increased from $500 to up to $5,000 for new plans); and (f) certain long-term part-time employees who work at least 500 hours in at least 3 consecutive years will be eligible to participate in their employers 401(k) plan (starts in 2021). 

With the start of a new year, it is always a good time to review and revisit your retirement plan and to consider tax and estate planning ideas. We recommend that you seek competent tax and legal counsel in tax estate planning and consult with your financial/investment advisor concerning your retirement plan. 

Tax Law Article

The Qualified Target Industry Tax Refund

By: Zachary Brown

A tax incentive is a way that the government can encourage or attract certain economic activities to a particular area. Tax incentives typically are aimed at attracting investment as a way of increasing employment, economic output, research and technology development, and improving infrastructure to surrounding areas. Tax incentives are offered at the federal, state, and local level through a variety of different means and mechanisms. The Qualified Target Industry Tax Refund (QTITR) is one type of incentive offered by the State of Florida

The QTITR is a tool the State of Florida offers to communities to encourage job growth in industries that the state has prioritized because of the types of jobs those industries create or the services they offer to surrounding communities. The Qualified Target Industry Tax Refund allows a company to recoup some of the taxes it pays based on certain economic activity the company creates. Some of these taxes include corporate income, sales, ad valorem, intangible personal property, and other various taxes levied by the government. The program’s rules state that no more than 25 percent of the total refund approved may be taken for a single fiscal year and that a qualified business may receive no more than $1.5 million in tax refunds for a single fiscal year.

So how does a business qualify for the QTITR? Well, a business must first be a Qualified Target Industry (QTI). QTIs are the businesses that Florida is looking to attract to the state. Broadly speaking, QTIS are in certain industries that include cleantech (such as sustainability and biomass technology companies), life sciences, infotech (such as digital media and software companies), aviation and aerospace, homeland security and other defense companies, and financial/professional services. While some businesses may consider themselves on the edge of one of those categories, it should be noted that Florida Statutes expressly provide that a QTI is not “any business subject to regulation by the Division of Hotels and Restaurants or the Department of Business and Professional Regulation.”

All business ventures are evaluated on an individual basis, so don’t assume by operating in one of the above mentioned QTIs automatically indicates eligibility. To determine eligibility, an application is submitted to Enterprise Florida (EFI). EFI is a public-private partnership between Florida’s business and government leaders. It is the principal economic development organization for the State of Florida and the Chairman of the EFI board is Governor Ron DeSantis. EFI will evaluate a certain project or business venture based upon how many full-time jobs are created and the annual wages those jobs pay. There are several other minor economic factors that EFI evaluates before pre-approving the application and sending it off to the Department of Economic Opportunity (DEO).

The DEO is the Florida agency that gives a final decision on whether a business will receive the QTITR. The amount of the tax refund provided by the DEO varies depending on each situation. The DEO provides the applicant with a letter of certification approving or denying the applicant’s request. The applicant and DEO then work to sign a written tax refund agreement that includes the specifications of what kind of refund the applicant will receive.

There are many rules and regulations when applying and attempting to receive the QTITR, so it is important to navigate the process as carefully as possible. As always, seeking the help of counsel to navigate this process is a good idea.

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

Estate Category

How Assets Transfer When a Person Dies

When a person dies their assets generally transfer to a new owner in one of four ways as follows: Joint Owner with Survivorship Rights; Payable-On-Death/Transfer-On-Death/Beneficiary Designation (“Beneficiary Designation”); via Probate; or via a transfer to a Trust. 

If an asset is owned with a joint owner who has survivorship rights to said asset, the surviving joint owner(s) automatically owns the asset free from the probate process upon the other joint owner’s death. Common assets that have joint owners with survivorship rights are: bank accounts; real property and investment accounts. 

If an asset has a Beneficiary Designation, the named person(s) to receive the asset will be able to claim said asset free from the probate process upon the owner’s death. Common assets that have Beneficiary Designations are: bank accounts; retirement accounts; life insurance; annuities; real property; corporate interests and investment accounts. 

Probate is a circuit court proceeding in which assets are transferred to new owners upon a person’s death. All assets that are not transferred by some other means (to avoid probate) are subjected to probate administration and thus subject to the terms of a person’s Will (if they have one). If you die without a Will and have assets that are subject to probate administration, any interested person can petition the court in order to distribute your assets according to state laws. I view a Last Will and Testament (more commonly referred to as a “Will”) as a necessary estate planning document for most people but I also see the Will as a safety net to catch assets that a person has failed to transfer via other methods such as joint ownership with survivorship rights, Beneficiary Designation, or by a transfer to a trust. There is a common misconception that the only estate planning document needed is a Will, however, a Will alone (without proper planning and understanding of how the Will operates) is not likely to avoid issues following a person’s death. 

If an asset has been properly transferred into a Trust during a person’s lifetime or by a Beneficiary Designation, the Trust’s terms shall govern the administration and distribution of said asset until the Trust has fulfilled its purposes and the asset will avoid the probate process. The depth of this article will only allow for discussion on the most common type of trust which is known as a revocable trust or a living trust (“Revocable Trust”), However, many types of trusts exist for many different purposes. 

A Revocable Trust is a legal document that is established during a person’s lifetime which usually directs that the trust’s assets and income are to be used for the person’s benefit during their lifetime and also designates beneficiaries to receive said assets after the person’s death. A Revocable Trust, like a Will, can be amended at any time by the creator of the trust who is known as the “Grantor” as long as he is living and maintains legal capacity. The person in charge of the trust with legal authority to manage the trust is known as the trustee (“Trustee”). The Trustee administers the trust for the benefit of the Revocable Trust’s named beneficiaries. Usually, the 

Trustee is the Grantor during his lifetime and then a successor trustee is named to take over the trustee role upon the Grantor’s death. 

After creating a Revocable Trust, the Grantor then transfers many of his assets to the Revocable Trust during his lifetime. The Grantor can add or withdraw assets from and to his Revocable Trust at any time during his lifetime while he maintains capacity. When the Grantor dies, a Revocable Trust becomes irrevocable and the then serving trustee and trust beneficiaries may not alter any of the trust’s provisions. A Revocable Trust will avoid probate upon the Grantor’s death for all assets that have been transferred to the trust. Probate is avoided because Revocable Trust assets are not titled in the name of Grantor at the time of death and therefore the property is not part of a probate process. It is very important to fund a Revocable Trust as failure to properly fund the trust will provide little or no benefit to the Grantor. 

Whenever configuring an estate plan, it is important to meet and discuss with a qualified estate planning and probate attorney where you map out and plan what will happen to each of your assets upon your death to ensure that your estate planning goals are accomplished at the time of death. 

Real Estate Law Article

I CAN SEE CLEARLY NOW, IT’S NOT CLOUDY

When purchasing real property in Florida, people will often tell you to make sure that you get “clear title” or “good title” to the property. That sounds like good advice, but what does it really mean? First of all, title is the legal right to control and dispose of property. A deed is evidence of having title to real property, and the different types of deeds were discussed in one of our recent articles. Clear title and good title are different ways of referring to having marketable title to real property. A common definition of marketable title in Florida is title “which a reasonable, prudent person would accept in the ordinary course of business after being fully apprised of the facts and the applicable law.” Additionally, title is marketable if it is free of “clouds” or “defects” such as adverse rights, interests or liens. 

The Florida Uniform Title Standards are a reference for determining whether title is marketable. The preface to the Title Standards describes a title standard as “a voluntary agreement made in advance by members of [The Florida] Bar on the manner of treating a particular title problem when and if it arises.” The Title Standards have not been formally approved by any court or legislative body; however, they are well established principles used by real estate attorneys in Florida when examining title to real property. 

Obtaining title insurance when purchasing real property is the typical way of determining that title is marketable. A real estate attorney will examine recorded documents affecting title to the property, and then apply the Title Standards to any title problems that arise in the examination. Typically a buyer will have a contractual right to object if a seller’s title to real property is unmarketable. Assuming the seller’s title is marketable, the parties can proceed to closing and the buyer will receive an owner’s policy of title insurance. Title insurance is an indemnity against loss resulting from a title defect. If a defect is discovered after closing which renders title unmarketable, and the title insurance policy did not except or exclude the defect from coverage, then the title insurer will typically have to pay up to the policy limits to have the defect removed. 

One of our experienced attorneys can help you with your title questions, as well as closing your real estate transactions.