In the olden days before 1985, the seller was not required to make disclosures. In that year the law in Florida changed to require this disclosure: “Where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer.” Johnson v. Davis, 480 So.2d 625 (Fla. 1985). And the inclusion of an “as is” clause in a contract does not waive the duty to disclose. Solorzano v. First Union Mortg. Corp., 896 So.2d 847 (Fla. 4th DCA 2005).

In an opinion issued on February 14, 2025, the sellers of an alleged flood-prone home in St. Petersburg attempted to defend the sufficiency of their disclosures. The parties executed an “as is” contract for sale, and the sellers filled out a Seller’s Disclosure form that stated the property had “slight” water damage. After the closing, the buyer sued for breach of contract alleging failure to disclose the flood history of that property. The trial court entered summary judgment in favor of the sellers, but the appellate court sent the case back to the trial court for further litigation as to whether the disclosure was sufficient. Smith v. Lynch, 2025 Fla. App. LEXIS 1169 (Fla. 2nd DCA 2/14/2025).

As these cases show, full disclosure of the effects of flooding on residential property being sold in Florida is required by law. That being the case, there are thousands of homes on the west coast of Florida that will, at some point in time, prior to their sale, require detailed disclosures regarding the effects of flooding. This suggests the need for a form to use as a starting point for making such disclosures prior to sale.

The Florida Realtors has, for years, promulgated the Seller’s Property Disclosure – Residential form for use by Realtors when taking a listing. While it includes questions regarding flooding, it apparently does not ask sufficient questions to satisfy the courts. Therefore, the addition of a Hurricane Supplement to the Seller’s Property Disclosure form may help to accomplish this purpose. A sample form is set forth below as a starting point.

The next hurricane season will be here soon. We can hope that it will render less disaster to our homes than the last one. In the meantime, sellers can help buyers of their homes know what they have done to repair and replace the damage done so far by making detailed disclosure of information. The more, the better.

August 18, 2024

The Florida Realtors has posted on its website its Exclusive Buyer Brokerage Agreement as the contract form for Florida Realtors to ask/encourage/require prospective buyers to sign before showing them a house for sale. Prospective buyers would think that’s great. I’d like a real estate agent who only represents buyers on my side, rather than someone on the seller’s side. But that’s not what “exclusive” means in this case.

I teach law students to read the entire contract before drawing conclusions from the title. So, let’s read this Exclusive Buyer Brokerage Agreement. Go ahead and download it here. I read it. It doesn’t say that the Realtor represents only buyers. And it also doesn’t say that the Realtor will represent only the prospective buyer who signs the buyer broker agreement. In fact, paragraph 4(b) says, “Consumer understands that Broker may work with other prospective consumers who want to acquire the same property as Consumer.” That’s exactly the opposite of what the prospective buyer wants.

Then why does the title say “exclusive”? Here’s why: paragraph 5(a) says the buyer must conduct “all negotiations and efforts to locate suitable property only through Broker”. What this means is that the person who signs the Florida Realtors Exclusive Buyer Brokerage Agreement is legally bound to use only that Realtor to show them houses for sale. That prospective buyer cannot use zillow.com or realtor.com or redfin.com or trulia.com or the newspaper to find and visit homes for sale, unless they plan to pay the Realtor a commission if they end up signing a purchase contract. That’s right. The prospective buyer would still owe the Realtor a commission if a contract for purchase is signed. Where does it say that? Paragraph 7 says, “Broker’s commission is earned when…Consumer…contracts to acquire real property.”

Well, so far, reading the Florida Realtor’s Exclusive Buyer Brokerage Agreement tells us that the prospective buyer must use only the named Realtor to show them houses and that the buyer is obligated to pay the Realtor a commission if the buyer signs a purchase contract that the seller accepts. Does it get any worse than this for the buyer? Yes. According to this contract form, the Realtor’s commission is earned when the contract for purchase is signed. This means that the buyer must pay that commission even if there is no closing. So, if the purchase contract falls through for some reason, even if not the buyer’s fault, the buyer could still owe the Realtor the commission.

For those interested in fairness to buyers, the Florida Realtors did not post on its website any buyer broker contract form that was not “exclusive”. This means that it is up to each person who wants to buy a house and not be tied to the onerous restrictions of the Florida Realtors Exclusive Buyer Brokerage Agreement form to negotiate their own buyer broker agreement with the Realtor. This is because the National Association of Realtors requires all Realtors who represent a buyer to have a written agreement with the buyer. It does not need to be exclusive, but the only form provided by the Florida Realtors is the exclusive form.

You may have read the Tampa Bay Times newspaper article on August 14, 2024 entitled “Buying a Home in Florida Just Got More Complicated Thanks to New Rules” about the big change in residential real estate brought about by the 2024 settlement of the antitrust case against the National Association of Realtors. This is one of those changes. 

Are you confused? You’re not alone. I’m a board certified real estate lawyer, and this is one of the most far-reaching changes in my fifty years of practice. Generally, only the seller paid commissions to Realtors. The Realtors on each side shared the commission paid by the seller. After August 17, 2024, the buyer may be legally liable to pay commission to the Realtor on the buyer side of the deal. Now it’s all a matter of contract negotiation. Not just negotiating a contract for purchase with the seller. Now the prospective buyer must negotiate a contract with the buyer broker. That’s not a bad thing. It’s actually good for buyers to engage a real estate agent. Just see my page Buying a Home on this website.

But Buyers Beware: Read the entire buyer broker agreement, and call your lawyer before signing.

The same applies when the decedent dies in an auto accident: anyone claiming that the decedent caused injuries must file a claim in the probate proceeding.

The same also applies when anyone claims that the decedent stole money from them: they must file a claim in the probate proceeding.

Florida probate lawyers also know that just because a claim is filed in probate does not mean it will be paid. The first obstacle to getting paid is that the personal representative of the estate might object to the claim.

If that happens, then the person who filed the claim must file a separate lawsuit in civil court. So, if the claim was for money lent, there would be a civil lawsuit for money lent. And if the claim was for an auto accident, there would be a civil lawsuit for negligence. And if the claim was for theft, there would be a civil lawsuit for that. In each of those cases, it would go through the civil court process of filing pleadings, taking discovery, and holding a trial.

Florida probate lawyers know that if the claimant wins at trial, the civil court judge would enter a judgment in favor of the claimant and against the estate. But that still does not mean that the claim, now also a judgment, will be paid. That’s because there is a Florida probate statute that sets forth the order of priority of payment of claims, even if the claims are based on judgments.

Some claims have higher priority than others. Certain taxes, estate administration expenses, estate legal fees, last illness medical expenses are in higher classes of priority than general claims for money lent, auto accidents, and theft.

Some Florida probate and real estate lawyers, including me, have wondered what would happen if a probate claimant went through the above process in civil court and won at the civil trial and got a judgment against the estate and then took the extra step of recording a certified copy of that judgment in the county’s official records. 

Doing so creates a judgment lien on all real property owned by the judgment debtor in that county. F.S. §55.10. Would that give the claimant the right to levy on the estate’s real estate even if the claimant was in a lower class of priority?

In April 2022 the Florida Second District Court of Appeal in Jones v. McKinney, Case No. 2D21-252, 2022 WL 1159586, said no. Someone holding a judgment lien by recording a certified copy of a judgment cannot jump ahead and ignore the priority statute. Its claim must still follow the rules of priority set forth in the Florida Probate Code. The court pointed to F.S. §733.706, which says that claims on all judgments against a decedent must be filed in the same manner as other claims. 

Even though the judgment in this case was based on a jury verdict that the decedent committed exploitation of a vulnerable adult and civil theft and the claimant’s victim incurred $757,000 in actual damages, which the trial court tripled because it was for civil theft of an elderly person, resulting in a total judgment of $2,271,000.

The result might have been different if the claimant had been a mortgage lender instead of a victim of elder exploitation and theft. The court notes an exception in F.S. §733.706 for mortgages and other liens encumbering specific property. The court based its decision on the 1968 2nd DCA case of County of Pinellas v. Clearwater Federal Savings & Loan, 214 So.2d 525, that says a judgment lien is a general lien, which attaches to any property currently owned or subsequently acquired by the judgment debtor, whereas a mortgage is a lien upon specific property.

All of this points to the bottom line: Florida probate creditors have multiple hurdles to getting paid. And I haven’t even brought up the most common hurdle, the strict statutory deadline for filing claims.

It is also available as a free ebook on Apple Books (Mac, iPhone, iPad), Google Books, Google Play Books (Android), Barnes and Noble Nook, and Amazon Kindle and as a $12 paperback on Amazon and Barnes and Noble.

This is my fifth free ebook published this year. My first four ebooks “Florida Real Estate Sales Contracts”, “How To Form a Florida LLC or Limited Liability Company”, “How To Form a Florida Business Corporation”, “How To Form a Florida Nonprofit Corporation” were published earlier this year.

“Florida Real Estate Lease Agreements: A Collection of Forms for Lawyers” includes 240 pages of legal forms to provide an aid in drafting lease agreements for Florida real estate and includes related forms such as lease addendum forms, amendment to lease forms, assignment of lease forms, and termination of lease forms.

These free ebooks are primarily directed to lawyers because Florida real estate sales and leases and the formation of legal entities are based on Florida Statutes and case law so having a law degree is really a starting point in drafting them. If you are not an attorney, please engage an attorney to review any contract before you sign it or use it.

Please note that these free ebooks are provided for educational purposes only and are not legal advice and do not create an attorney-client relationship.

It is also available as a free ebook on Apple Books (Mac, iPhone, iPad), Google Books, Google Play Books (Android), Barnes and Noble Nook, and Amazon Kindle and as a $12 paperback on Amazon and Barnes and Noble.

This is my fourth free ebook published this year. My first three ebooks “How To Form a Florida LLC or Limited Liability Company”, “How To Form a Florida Business Corporation”, “How To Form a Florida Nonprofit Corporation” were published earlier this year.

“Florida Real Estate Sales Contracts: A Collection of Forms for Lawyers” includes 192 pages of legal forms and checklists to provide an aid in drafting contracts for sale of Florida real estate and includes related forms such as contract addendum forms, amendment to contract forms, assignment of contract forms, and termination of contract forms.

These free ebooks are primarily directed to lawyers because Florida real estate sales contracts and the formation of legal entities are based on Florida Statutes and case law so having a law degree is really a starting point in drafting them. If you are not an attorney, please engage an attorney to review any contract before you sign it or use it.

Please note that these free ebooks are provided for educational purposes only and are not legal advice and do not create an attorney-client relationship.

There is no magic form of disclaimer clause wording for as-is contracts in Florida, but a 2022 Pinellas County, Florida case shows the importance of contract drafting (and contract reading) and what can happen if certain words are missing in a disclaimer.

In NM Residential, LLC v. Prospect Park Development, LLC, 336 So.3d 807 (Fla. 2d DCA 2022), the Pinellas County trial court dismissed a lawsuit that made fraud claims arising from a purchase and sale agreement, basing the dismissal on the as-is disclaimer clause in the contract, but the appellate court reversed because “Florida Supreme Court precedent requires that to foreclose liability for fraud the parties must expressly stipulate that any fraud that might have been committed cannot form the basis of a claim.”

The court quoted Oceanic Villas, Inc. v. Godson, 4 So.2d 689 (1941), and said, “[T]he contract must do more than merely agree ‘that no fraud had been committed’ — i.e., disclaim the making of fraudulent statements upon which the other party has relied — but must rather ‘recognize that fraud may have been committed and stipulate that such fraud, if found to have been committed, should not vitiate the contract.’”

Now that’s pretty strong wording to put into a contract that should be read by the buyer before it is signed. Would you sign a contract if it it had a disclaimer clause that said the other side is not liable even if it committed fraud, and that fraud might actually have been committed? I suppose this type of wording appears in website terms of service agreements and other types of contracts that we all “agree” to every day, but selling real estate seems to me to call for a higher level of mutual agreement.

And, I think this case stands for that concept: if you want the buyer in a Florida real estate deal to be prevented from suing the seller for fraud, then the contract disclaimer clause needs to make it clear that there might have been fraud, and even if so, the buyer waives that fraud claim.

Maybe this is another one of those peculiarities in Florida law.

The bottom line: we need to both read and draft our disclaimer clauses in as-is contracts for sale of Florida real estate very carefully. Perhaps it’s the first clause to read, right after the price.

For additional information, see the free ebook “Florida Real Estate Sales Contracts” by Florida Bar Board Certified Real Estate Lawyer James W. Martin.

Buyer: You’re buying real estate in Florida and the broker says you don’t need a survey unless the lender requires it. Is that true? Probably not. Why? Because the survey is the only thing that ties your deed’s legal description to the actual land you are buying. You can walk all over your newly-purchased real estate and still not really know where your property begins and your neighbor’s ends. That is, unless you have a surveyor prepare a current survey map and stake the boundaries on the land itself. (The survey can also show encroachments on the boundary lines, as well as easements and features, such as buildings, structures, streets, driveways, etc., but you might have to ask for that.)

Seller: The same thing applies to the real estate seller. You need to know that the deed you sign at the closing has the same legal description as the survey and that the survey map and stakes in the ground are for the property you are selling and not for some nearby land.

Landlord and Tenant: The same thing applies to the real estate landlord and tenant because a lease is like a deed in that it is an interest in real estate. You need to know that the lease you sign has the same legal description as the survey and that the survey map and stakes in the ground are for the property you are leasing and not for some nearby land.

Contractor: Every contractor and subcontractor who improves real estate in Florida needs a survey because they should put the legal description in a notice to owner, and possibly a claim of lien, in order to comply with the Florida Construction Lien Law, and the survey is what ties the legal description to the actual land they are working on. Otherwise, they might lose their lien rights.

Lender: Lenders usually require surveys as part of their mortgage loan process for the same reason. It is what ties the legal description on the mortgage to the actual land.

Owner: The owner of Florida real estate also needs a survey for the same reasons. And a survey is also a place to keep a record of improvements above ground and underground. When you have a gas line run underground to supply your new tankless natural gas water heater and emergency backup generator, you need a place to write down its location so that future workers do not cut into it. When you add a swimming pool in your backyard, you need a survey to determine the setback from the property lines. Your survey is what ties your legal ownership in the land to your improvements on the land.

So, as it turns out, everyone dealing with real estate in Florida needs a survey. Who knew?

For additional information, see the free ebook written by Florida lawyer James W. Martin on Florida Real Estate Sales Contracts.

1. Clear Contract. Litigation is less likely with a clear contract, so the lawyer can assist in preparing and negotiating a clear contract for sale of the real estate. Sometimes this is done with a standard form, such as the FR/Bar form issued by The Florida Bar and Florida Realtors or the FAR forms issued by the Florida Realtors. The lawyer often prepares addenda to these standard forms to clarify aspects of the transaction. Sometimes, however, the lawyer prepares a form specifically for the particular transaction rather than using a standard form that has many provisions that are not applicable to the particular case or that are more favorable to the buyer. Unlike others parts of the real estate sales team, lawyers are trained in the art and use of legal words and the drafting and interpretation of contracts.
2. Deadline Follow-up. All contracts for the sale of real estate should include deadlines for such matters as inspections, financing, title insurance, surveys, closing, etc. To avoid litigation, it is important to comply with these deadlines. The lawyer can assist the seller in scheduling contract deadlines in order to achieve the goals of getting paid and avoiding litigation.
3. Limit Liability in Contract. Deed and Closing Documents. Legal documents often contain representations and warranties that are binding upon sellers after the closing in a way that may obligate the sellers to pay damages to the buyers even years after the closing. Since the seller’s goals are to get paid (and stay paid) and avoid litigation, it is often important to limit the seller’s representations and warranties in contracts. Lawyers know which warranties and representations are standard and which are not, which can be negotiated out and which must stay.
4. Cashier’s Check or Wire Transfer at Closing. The seller should accept only a cashier’s check or a wire transfer of net proceeds at the closing. If the seller accepts a closing agent’s escrow check, then the seller accepts the risk if the check fails. While most closing agencies are reputable, there is no way to tell whether its escrow check will be honored by your bank. If it is not, the seller loses and the buyer gets to keep the deed. So, it is essential that the seller only accept a cashier’s check or wire transfer at closing.

Therefore, the seller of Florida real estate, whether it is residential or commercial, should always engage a Florida lawyer to assist in the transaction.

For additional information, see the free ebook written by Florida lawyer James W. Martin on Florida Real Estate Sales Contracts.

The lawyer can help the buyer prepare and negotiate a purchase contract, then advise the buyer through the buyer’s due diligence inspection period, and then read the deed, title insurance commitment, and other closing documents on behalf of the buyer. 

Specifically, the real estate buyer’s lawyer can do the following:

Due Diligence Period. The buyer’s lawyer can assist in preparing and negotiating a contract for purchase of the real property that includes a due diligence inspection period with broad wording to allow the buyer to check for obvious (patent) and non-obvious (latent) defects.  These might be in the building, land, air or water.  They could be environmental, structural, mechanical, electrical, or otherwise. The buyer might remember the Latin saying, Caveat Emptor, which means “Let the buyer beware.”  This meant that the seller was not obligated to tell the buyer about defects known by the seller.  While this ancient rule of law has changed with regard to residential real estate, it still applies in Florida to commercial real estate, so it is even more important for commercial real property buyers to do their due diligence inspections.  However, it is still important for residential buyers to inspect for defects because sellers are not obligated to tell about defects that sellers are not aware of so the buyer might discover something unknown to the seller.  In addition, if the residential seller fails to disclose a known defect and is liable to the buyer for not doing so, the seller might not have enough money left to pay the buyer damages for the nondisclosure. If the buyer does not discover the defect until after the closing, then it is too late to back out of the transaction without expensive litigation.

Clear Contract. The buyer’s lawyer can assist in drafting a clear contract that gives the buyer what the buyer expects to buy in the transaction. Sometimes this is done with a standard form such as the FR/Bar forms issued by the Florida Bar and Florida Realtors or the FAR forms issued by the Florida Realtors. The lawyer often prepares addenda to these standard forms to clarify aspects of the transaction on behalf of the buyer that might otherwise be unfavorable to the buyer. Sometimes, however, the lawyer prepares a form specifically for the particular transaction rather than using a standard form that has many provisions that are not applicable to the particular case. Unlike real estate brokers, lawyers are trained in the art and use of words and the drafting and interpretation of contracts.

Deadline Follow-up. All contracts for the purchase of real property should include deadlines for such matters as inspections, financing, title insurance, surveys, closing, etc. To avoid breaching the contract, it is important to comply with these deadlines. The lawyer can assist the buyer in scheduling contract deadlines.

Read Closing Documents and Include Protections. Legal documents can be written to include representations and warranties that are binding upon sellers after the closing in a way that may obligate them to pay damages to the buyer even years after the closing, but sellers try to avoid this wording so that any discovered defects are the buyer’s sole problems. If the buyer does not have an attorney the buyer may not have the benefit of including this wording in the contract, deed and other documents.  Since the seller’s only goals are to get paid (and stay paid) and avoid litigation, it is important to include seller’s representations and warranties in contracts and deeds. Lawyers know which warranties and representations are standard and which are not, which can be negotiated in and which are more difficult to include.

Cost-Benefit of Legal Advice. The benefits of having a lawyer come at a cost: legal fees. Buyers who do not have lawyers do not pay legal fees; at least, not unless or until a breach or defect is discovered. Legal fees in litigation are expensive because it is fueled by opposing parties with opposing claims and positions. Legal fees paid to a buyer’s lawyer to advise the buyer before signing a contract to purchase and before closing on the contract are much less than legal fees in litigation. There is no crystal ball to determine in advance whether a particular deal will result in litigation so it is best to hire a lawyer to assist in assessing and minimizing the risks of the purchase transaction to the extent possible.

Therefore, the buyer of Florida real estate, whether it is residential or commercial, should always engage a Florida lawyer to assist in the transaction. Otherwise, there is really no one on the buyer’s legal side.

For additional information, see the free ebook written by Florida Bar Board Certified Real Estate Lawyer James W. Martin on Florida Real Estate Sales Contracts.

A story in today’s paper tells the sad story: man buys beachfront condo at foreclosure sale; condo has two mortgages, not one; foreclosure was for second mortgage; buyer now has to pay first mortgage.

Here’s the lesson: get a title insurance commitment before you buy real estate. No matter who you buy it from: a neighbor, a friend, a family member, a Zillow ad, a real estate listing, or even on the courthouse steps in a foreclosure.

Here’s the reason: buying real estate is not like buying a car. Every car has a title certificate showing who owns it. But real estate is different: there is no title certificate for real estate. Instead, we have title insurance companies who research the chain of title to determine who owns it. Every single parcel of real estate in Florida is handled this way.

When the title company searches to determine who owns the real estate, they also search for mortgages. So, if there are two mortgages instead of just one, the title insurance company tells you that. But they don’t tell you that in a phone call or by email or text.

Title insurance companies give you what is a called a title insurance commitment. It reports the results of their title search by telling you who owns the real estate now and what mortgages and liens and things are against it. They cost anywhere from $50 to $2,000 depending on the real estate involved. The title commitment also tells you what they require to be done before they will insure the title.

That’s right. They will actually insure the title to the property. So if they missed something in their search, then their insurance should protect you from that error by paying you damages. For that, they charge a premium that is paid once at the closing, not annually, based on the purchase price. The seller usually pays that premium, but who pays it is actually negotiable.

Of course, if someone buys real estate at a foreclosure sale, the seller is not going to provide title insurance so you would have to get it yourself.

And you must have the title insurance commitment before you actually buy the property. If you get it afterwards, it’s too late to do anything about mortgages and other adverse things that appear on it. As the buyer in today’s sad story learned, the hard way.

For additional information, see the free ebook written by Florida Bar Board Certified Real Estate Lawyer James W. Martin on Florida Real Estate Sales Contracts.

A good way to see the difference is to consider the legal documents needed when changing the title. If you have a car and want to sell it to someone, you need two documents: your title certificate and a bill of sale. Your title certificate is proof that you own the car. The bill of sale is the legal document by which you transfer ownership (title) to the buyer.

But real estate is different; there is only one document: the deed. If you want to sell your house to someone, there is no title certificate proving you own it. All you have is the deed you got from the seller who sold it to you. That deed was recorded with the Clerk of Court in the Florida county where the land is located. In order to prove you are the owner of the house, the deed is just the starting point. You also need a title insurance company to search the Clerk’s records to be sure that your deed is the last one on record. The title insurance company will then issue a title insurance commitment agreeing to issue a title insurance policy to the buyer at the closing.

All of this is required because there is no title certificate or title registration process for real estate in Florida as there is for motor vehicles. (Some states have enacted laws that provide for real estate title certificates, but Florida has not.)

So, the next time you plan to sell your home, business, or other real estate in Florida, you’ll need the deed and title insurance policy you got when you bought it. Don’t look for a title certificate as you would to sell your car or truck.

For additional information, see the free ebook written by Florida lawyer James W. Martin on Florida Real Estate Sales Contracts.

Don’t agree to anything until you’re ready to sign a written contract. The last thing you need is someone claiming you agreed to sell them your Florida real estate and threatening to sue you if you try to sell it to someone else.

Don’t take a cash deposit from a buyer without a signed written contract. Part payment might be evidence that you had a contract to sell your real estate when you did not intend to be legally bound.

Don’t sign a listing agreement with a broker until your lawyer reviews it. Some brokers word their listing agreements to provide they are entitled to be paid a commission when a buyer is found rather than when there is a successful closing.

Don’t sign a contract until your lawyer reviews it. Contracts are complicated. You always need a lawyer.

Don’t make representations and warranties unless you intend to stand by them. Generally, the seller wants to avoid being sued by the buyer after the closing. Entering into an “as is” contract and allowing the buyer the right to perform due diligence before closing might be one way to limit risk to the seller of being sued after the closing for defects in the real property.

Don’t sign and deliver the deed until you’ve received a cashier’s check or wire transfer. If for any reason the buyer’s funds do not make it into the seller’s bank account, the seller might not ever get paid. In one Florida case, the buyer got to keep the deed even though the seller never got paid. Jones v. Lally, 511 So.2d 1014 (Fla. 2nd DCA 1987).

For additional information, see the free ebook written by Florida Bar Board Certified Real Estate Lawyer James W. Martin on Florida Real Estate Sales Contracts.

On April 24, 2013, the Governor signed into law Chapter 2013-28, Laws of Florida, which adds Section 558.0035 to the Florida Statutes. It says that a design professional is not individually liable for damages resulting from negligence if the following conditions are met:

1. The professional is employed by a business entity or an agent of a business entity;
2. The negligence occurs within the course and scope of a professional services contract;
3. The contract is made between the business entity and a claimant, or is made with another entity providing professional services to the claimant;
4. The contract does not name as a party to the contract the individual who will perform the professional services;
5. The contract includes a prominent statement (in uppercase font five sizes larger than the rest of the text) that pursuant to Florida Statutes Section 558.0035 an individual employee or agent may not be held individually liable for negligence;
6. The business entity maintains any professional liability insurance required under the contract; and
7. Any damages are solely economic in nature and do not extend to personal injuries or property not subject to the contract.

The new law is generating lots of buzz among construction lawyers who are analyzing every word because it is thought that design professional employees, at least until July 1, 2013, have individual (personal) liability for their negligence. It appears that this new statute is an attempt to override the case law. Which is good if you’re a design professional…not so good if you’re a claimant.

Some lenders choose not to file a claim in a probate estate, thinking that they can sue on the mortgage without filing a probate claim. Taking this approach might cost them the mortgage. A recent case provides some groundwork for defending against such a foreclosure.
In its 11/9/11 opinion Taylor v. Bayview Loan Servicing the Florida 2nd District Court of Appeal held that if a promissory note is secured by a mortgage, and if the note is assigned, then the mortgage follows the note and is automatically assigned along with the note, even if no separate assignment of mortgage is recorded.

The court cited the 1938 Florida Supreme Court case of Johns v. Gillian, 184 So. 140 (Fla. 1938), which said that “the mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt.”

Therefore, logically, if the note was not assigned but instead became unenforceable due to the Florida Probate Code’s statute of limitations, would not the mortgage that follows it also become unenforceable?

The mortgage follows the note. So, if the note becomes unenforceable, does the mortgage become unenforceable? The Florida Probate Code provides a 2-year statute of limitations on creditor claims, in addition to the 3-month statute of limitations on claims by reasonably ascertainable creditors. If a lender fails to file a claim within 2 years after the death of a borrower, does the mortgage become unenforceable?

But, apparently, it’s not clear enough. A recent court decision held that a homestead held “as joint tenants with full rights of survivorship and not as tenants in common” passed to the joint owner and not as homestead property. In Marger v. De Rosa, 2011 WL 252942 (Fla. 2nd DCA 2011), a father who had two minor children purchased a home with his own mother. The deed said the son and his mother owned the home “as joint tenants with full rights of survivorship and not as tenants in common.” The father died. The court held that 100% of the home passed to his mother. No part of the home passed to his minor children.

The court’s reasoning is based on the way the law treats the form of ownership known as joint with survivorship. Upon the death of one of the joint owners, the title to the property passes automatically by operation of law to the surviving joint tenant. The court reasoned that the father’s interest in the home ended immediately on his death so there was nothing to leave to his minor children.

What’s interesting about this case is that 1) it is surprising to Florida probate lawyers and Florida real property lawyers because we have seen the courts expanding the protections of the Florida constitutional homestead over the last twenty years, 2) this case goes in the other direction and limits the protection, and 3) there is nothing new about the theories behind the case. While some interesting theories were presented by the minor children’s attorneys, the court chose not to go with them.

This case shows that long-standing legal theories have built-in potential to clash with each other when the right facts invoke them. In this case, it was a clash between a grandmother and her minor grandchildren over a home she owned with their deceased son/father. Hopefully, those set of facts won’t soon present themselves again.

When a Florida resident dies, the Florida Constitution protects the surviving spouse and minor children from becoming homeless by prohibiting the decedent from leaving the homestead to anyone else. It says “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child.” That seems pretty clear. But, apparently, it’s not clear enough.

If approved by the Governor of Florida, Senate Bill 1196 would allow a contractor doing work for a tenant to ask the landlord for a copy of the lease provision that prohibits construction liens. The copy must be verified by the landlord using a penalties-of-perjury clause. If the landlord fails to provide the copy within 30 days, then the tenant’s contractor might be able to lien the property.

This new law would provide additional rights for contractors of tenants and additional duties for landlords.

Florida landlords have for many years been allowed to include a provision in their leases prohibiting construction liens (mechanics liens) for construction ordered by their tenants. This is not always fair to the contractors who do the work and don’t get paid, especially when the work improves the landlord’s land, so the 2011 Florida Legislature approved an amendment to the Florida Construction Lien Law that might allow contractors to get their foot in the door to file a lien.

For additional information, see the free ebook written by Florida Bar Board Certified Real Estate Lawyer James W. Martin on Florida Real Estate Lease Agreements.

Domicile of Decedent. The first question is where was the decedent’s domicile at date of death? Domicile generally means the place where someone intends to permanently reside. It is complicated because domicile is not always the same as residence. There are many factors involved in determining domicile: sleeping place, working place, driver license, voter ID, auto registration, mailing address, tax return address, phone, number of days at each place, etc. For some people, all of these are the same place. But for other people, their driver license is from Florida but they have a second home in another state.

Type of Asset. Generally, Florida law applies to land, buildings and other real property located in Florida no matter where the decedent was domiciled at death. Similarly, if a Florida resident owned real property in another state, then the law of that state would apply to that real property. But, for all bank accounts, stocks, bonds, mutual funds, and other personal property, the law of Florida generally applies as to Florida residents.

This means that if a Florida resident dies, then his or her will should be filed first in Florida as the domicile state, and the probate proceeding here is called the domiciliary probate proceeding. Then an exemplified copy of the will and court documents are sent to the other state where real property is located and an ancillary probate proceeding is filed there.

A recent Florida appellate court stated the general rule in Florida to be that an easement to access land does not necessarily prohibit installation of a gate. It went on to say that the words “free and unencumbered access” in the easement did not mean that gates were prohibited.

The key missing word in the easement is “open”. If the word “open” was in the easement, the court might have held otherwise.
So if you want your driveway easement not to have gates, it’s best to specify in the easement that it will be “free and unencumbered and open and without gates”.

Of course, every case is different, depending on the facts and the law of the location of the land.

Land development did not really take off in Florida until the 1900s when railroads were built to bring northerners to the sunny beaches. Development begins with land surveys. Surveyors set survey marks in the ground to mark corners based on a coordinate system like the one you studied in geometry. Of course, it’s more difficult because the earth is not a flat square; it’s a round ball. So, surveying is complicated.

In addition, the survey markers get covered by dirt. When’s the last time you saw your lot’s boundary corner markers? Most people don’t even know what they are.

The boundary dispute usually arises when you or your neighbor put your house on the market for sale. A prospective buyer should always obtain a survey and ask the surveyor to put flags in the corners so that the buyer can verify that the legal description on the sales contract matches what the buyer saw when the buyer walked the property. If the flags show that a fence, building or structure crosses the boundary line, then it’s an encroachment.

That’s when the boundary line dispute begins. But it does not end there. The owner of the encroaching structure has several defenses that his Florida real estate lawyer can raise, such as boundary by acquiescence, boundary by agreement, and adverse possession. These are complicated concepts, of course, because they are based on the common law of England going back centuries, but they are useful when defending against a boundary line dispute.

As Florida ages, Florida real estate lawyers will see more and more boundary line disputes.

It’s not a new problem. It’s been around as long as lawsuits. It’s just more frequent now because of the huge number of lawsuits on file in Florida due to the economic calamity of the last three years that culminated in mortgage foreclosure suits being filed by “foreclosure mills” that churn out case after case so that we have tens of thousands of pending cases in Florida.

In all those cases, it’s bound to happen that some borrowers cannot be found to serve with court process in the foreclosure case. Does that mean the foreclosure cannot go forward? If it did, then all you would have to do to avoid the foreclosure would be to avoid the process server.

But, it’s not that easy. Foreclosure is what is called an “in rem” proceeding, meaning that it is against the property and not against the person. The mortgage holder can proceed with the foreclosure if it cannot find the mortgage borrower after undertaking diligent search.

Florida law allows for alternative forms of service of process, such as constructive, substituted, etc. That’s why you read notices published in newspapers stating that such-and-such is suing so-and-so in some other state. They could not find that person and are using an alternative form of process to obtain “in rem” jurisdiction over the property in the lawsuit. It’s done all over the country, not just in Florida.

So, unless the U.S. Supreme Court find this concept, which has been around for many generations, to be unconstitutional, I suspect the lenders will win. (Of course, the robosigner defense might help some borrowers undo mortgage foreclosure.)

As a Florida lawyer, it’s interesting to read on the front page of the morning newspaper about service of process and other legal concepts I thought no one else cared about. Unfortunately, if you’re the one we’re reading about, then it’s more than interesting.