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.

In most cases, the originals of those documents will be needed at the critical time of incapacity or death. So, even though we live in an electronic age, the preservation of the paper documents we sign must be paramount.

Using bank safe deposit boxes as secure storage for these documents, along with real estate deeds, car titles, birth certificates, marriage licenses, and other important documents, has long been the gold standard.

But in recent years, as banks have reduced the number of their bricks and mortar locations, the availability and use of their safe deposit boxes has dwindled. Box rents are not profitable to banks, so this is understandable. 

Nevertheless, the issue remains: we need a place to keep our important documents. Here are five reasons why bank safe deposit boxes remain the logical choice.

First, if you always keep your wills and other important documents in a bank safe deposit box you will always know where they are. You won’t lose them. You won’t misplace them.

Second, if your safe deposit box is in the same bank that has your checking account, then when you become incapacitated or die, your family will know which bank has your safe deposit box, too, so they can find your original Florida will and other important documents.

Third, Florida law requires that a bank officer be present when a bank safe deposit box is opened after you die. Florida Statutes Sections 655.935, 655.936, and 733.6065. This keeps someone from reading the will, not liking what it says, and then shredding it.

Fourth, Florida banks generally have security procedures in place that keep safe deposit boxes more secure from theft than home safes. Sometimes banks locate their safe deposit boxes in their walk-in vaults. In any case, they are generally protected by a vaulted door. And they usually require two keys for access: the customer’s key and the bank’s key.

Fifth, bank safe deposit boxes are generally protected from hurricanes, tornadoes, fires, and other disasters, at least more so than our homes are protected.

In summary, Florida residents would be well-served to place their original wills, trusts, and other important documents in their bank’s safe deposit boxes.

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.

On September 30, 2023, the entire estate of the late Kyle William Bruening passed to the State of Florida because he died without a will, spouse, descendant, parent, sibling, grandparent, aunt, uncle, or first cousin. He had second cousins, who filed for probate claiming to be his beneficiaries, but that relationship wasn’t close enough…wasn’t good enough. All of his probate assets escheated to the State of Florida.

“Where a decedent was never married, heirs are limited to the decedent’s descendants; parents; siblings and, if they are deceased, their descendants; grandparents; and aunts and uncles and, if they are deceased, their descendants.”

Fla. Dept. of Legal Affairs v. Estate of Bruening, 373 So.3d 337 (Fla. 4th DCA 2023)

The court based its ruling on Florida Statutes Section 732.103 which sets forth the order of inheritance when a Florida resident dies without a valid will. The court interpreted the statute to exclude those family members whose closest relationship is through a great-grandparent.

“Pursuant to section 732.103’s plain language, persons who have great-grandparents in common with a decedent but who otherwise have no familial relationship with a decedent are not in a class of persons recognized as heirs of an intestate decedent’s estate.” 

Fla. Dept. of Legal Affairs v. Estate of Bruening, 373 So.3d 337 (Fla. 4th DCA 2023)

This case reminds us of the need to do several things while we are living:

• Don’t assume that the loved ones you name in your will are going to survive you. Specify in your will what happens if they predecease you. Who will get their share?
• Name final takers in your will. If all of the family members you name in your will predecease you, who do you want to get your estate? Is it a person or a charity? Remember that it could escheat to the State of Florida if you skip this step.
• Safeguard the signed original of your will. Copies generally don’t count in probate. The original needs to be filed with the Clerk of Court within ten days after date of death, so keep it in a safe place, such as a bank safe deposit box. 

And remember, if you die without a valid will, your probate estate will pass as an intestate estate under Florida Statutes Section 732.103, like it or not. You might not like that thought. But the State might like it. A lot.

In Chauncy v. Gorden, 374 So.3d 884 (Fla. 5th DCA), the appellate court upheld the trial court’s determination that “use of the word ‘survivor’ in a will referred to the survivor of the two persons named in the will, not the heirs of those persons.”

In this case, the will apparently left the estate to two people “or the survivor of them”. One of them died before the maker of the will died. The case was filed by Chauncy, the son of the beneficiary who had died, and Chauncy claimed that “survivor” means any heirs of named beneficiaries. Both the trial court and the appellate court declined to agree with that position. The appellate court said:

There was nothing in the will or other circumstances to show that the word ‘survivor’ intended to be given any meaning other than its common one….Generally, the word ‘survivor’ should be given its literal interpretation as meaning one who outlives another, one of two or more persons who live after the other or others have died…The term ‘survivor’ is limited to the individuals of such a class, and does not include their children…Using the term ‘survivor’ will generally exclude representatives so that the last survivor of a class will take the whole share of one dying although others of the class have all died leaving issue.

Chauncy v. Gorden, 374 So.3d 884 (Fla. 5th DCA)

This is an interesting case. Who knew the word “survivor” was ambiguous, requiring a court to determine its meaning? Perhaps the will should have been more explicit by saying if either of the named beneficiaries predeceased the testator, then the gift to that person lapses and passes to the other person. Hindsight is 20-20, again.

-James W. Martin, St. Petersburg Probate Attorney February 24, 2024

Sometimes a Florida resident adds a child to their bank account, which raises the question whether doing so is intended to be a gift or is it just for convenience.

“A convenience account is a bank account owned by one person, the principal, who authorizes a second person to make deposits and withdrawals on behalf of the account owner. While operating like a joint account, a convenience account is for the benefit of the principal and does not contain a right of survivorship in the agent. See § 655.80(1), Fla. Stat. (2021).” 

Larkins v. Mendez, 2023 WL 3485303 (Fla. 3rd DCA 2023

Just such an issue arose in the Larkins case. As stated by the Court: 

“During administration of Decedent’s estate, a disagreement arose as to whether the BB&T bank account was an estate asset – specifically a convenience account – subject to distribution among the three brothers. While there was a place on the signature card for the account to be designated as a “convenience account,” the “convenience account” designation box was not selected.”

Larkins v. Mendez, 2023 WL 3485303 (Fla. 3rd DCA 2023)

Because the written paperwork at the bank did not say it was a convenience account, the son who was the joint owner thought the account passed to him when his father died, and he spent the money.

However, the father’s estate sued the son claiming the bank account was just a convenience account, even though that box was not checked off on the bank’s paperwork, so the estate claimed the account belonged to the father’s estate and not to the son.

Both the trial court and the appellate court held in favor of the estate and found that the bank account was a convenience account so it belongs to the estate and not to the son. The courts looked beyond the bank paperwork and based their decision on the following evidence that the father intended it to be a convenience account even though he did not check that box:

-Testimony of the father’s other son;

-Testimony of the father’s neighbor who visited the father before he died and took detailed notes of their conversation; and

-Bank records showing how the joint owner son handled the bank account before and after his father died.

This case provides several lessons. First, Florida residents who want to add a child to their bank account should decide whether doing so is intended to be a gift or just a convenience account; second, they should state that intent in writing on the bank account paperwork; third, they should keep copies of the bank account paperwork with their wills, trusts, and other important estate plan documents; and fourth, they should state that intent in their last wills and testaments. 

And, of course, if they intend it to be a convenience account, they should check the box and save everyone a lot of time and trouble.

-James W. Martin, St. Petersburg, Florida, Probate Estate Attorney, May 31, 2023

Before his death, Nat created a residence trust and conveyed his Florida apartment to it. The trust provided that, upon Nat’s death, the apartment transferred to Valerie for her life with a power of appointment in Valerie to exercise at her death to leave the remainder to her granddaughter. 

Any Florida probate attorney knows this cannot be done because Florida law restricts who may receive homestead property at death when there is a surviving spouse. The Florida Supreme Court has said:

“[W]here a testator dies leaving a surviving spouse and adult children, the property may not be devised by leaving less than a fee simple interest to the surviving spouse …. This exception is exclusive and prohibits the testator from devising less than a fee simple interest to his surviving spouse under the circumstances presented herein.”

In re Finch’s Estate, 383 So. 2d 755, 757 (Fla. 4th DCA 1980)

The appellate court in the Stirberg case reconfirmed this ruling by saying:

“Thus, any devise of homestead property that does not grant a fee simple interest to a surviving spouse fails, regardless of intent.”

Nat’s children claimed the trust provision violated the Florida Constitution’s homestead provisions, resulting in a void gift, so they filed a petition to determine homestead status of real property. 

In its opinion, the appellate court noted that homestead passes immediately on the date of death by saying:

“Homestead property rights vest immediately upon the death of a testator or settlor. See Aronson v. Aronson, 81 So. 3d 515, 519 (Fla. 3d DCA 2012) (“At the moment of Hillard’s death, his homestead property passed outside of probate.” (citations omitted)); § 736.1109(1), Fla. Stat. (2022) (“If a devise of homestead under a trust violates the limitations on the devise of homestead in s. 4(c), Art. X of the State Constitution, title shall pass as provided in s. 732.401 at the moment of death.”).”

What’s interesting about this case is that the trustee of the residence trust attempted to fix the void trust provision by filing a separate trust reformation action, which almost worked: the trial court ordered reformation of the trust. But, the children appealed, and the appellate court sent the case back to the trial court, saying: 

“Not even a retroactive action can validly cure a devise violating the homestead laws. See Gotshall v. Taylor, 196 So. 2d 479, 481 (Fla. 4th DCA 1967) (“If the requirements of the Constitution and the statutes are not complied with in alienating homestead real estate, the attempt is a nullity … and is void ab initio, and subsequent events will not breathe life into it[.]”). A trust reformation is such a retroactive action and therefore cannot cure a devise violating the homestead laws.

“The Residence Trust conveyed to Valerie a life estate in the apartment with a power to appoint the remainder. Appellants have alleged that this conveyance violates constitutional and statutory homestead law. If they are correct, the Apartment would have passed as provided by section 732.401(1), Florida Statutes (2022)—a life estate to Valerie and a remainder to Appellants as the Decedent’s descendants.”

The case isn’t over yet. Now it’s up to the trial court to hear the petition to determine homestead status of real property filed by the children. Any predictions on who wins?

-James W. Martin, St. Petersburg, Florida, Probate Estate Attorney, April 30, 2023

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.

It is also available as a paperback on Amazon and Barnes and Noble and as an ebook on Apple Books, Google Books, Google Play Books, Barnes and Noble Nook, and Amazon Kindle.

This is my third free ebook. My first free ebook “How To Form a Florida Business Corporation” and my second free ebook “How To Form a Florida Nonprofit Corporation” were published last month.

There are 2,000,000 limited liability companies in Florida, and 1,000,000 business and nonprofit corporations. 

I have seen many limited liability companies, business corporations, and nonprofit corporations improperly formed and maintained. Some failed to issue stock or memberships; others failed to file annual reports and keep minutes of meetings; and others failed to maintain corporate records. 

Failure to comply with the basics of Florida entity law has resulted in real estate title problems, litigation, and potential personal liability. 

Each of these free ebooks provides lawyers with a step-by-step process with forms and checklists for forming and maintaining Florida legal entities to avoid these real estate title problems.

These free ebooks are primarily directed to lawyers and their staffs because legal entities are created under Florida Statutes so having a law degree really should be a prerequisite to forming and maintaining legal entities. 

However, I realize that we live in an age where nonlawyers freely access these materials on the Internet, so I have written these books in plain language that does not require a law degree to understand. But, my message for nonlawyers reading these books is to be sure to engage a Florida-licensed lawyer on your behalf to review any document before it is signed or filed.

Please contact St. Petersburg attorney James W. Martin if you have any questions, comments, or corrections.

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.

And, just like naming a person, naming a business takes time, thought, effort, and communication. You can’t just go register a domain name on Go Daddy and be done with it. Well, you can, but be ready to suffer the consequences.

Legal consequences. Business names have legal consequences. State and federal trademark laws prohibit your business name being confusingly similar to a trademark. 

Books. But, let’s start at the beginning. How do you think of a name for your business. There are lots of books of names for newborn babies. Are there books for newborn businesses? It turns out there are. The 22 Immutable Laws of Branding by Al Ries and Laura Ries and How to Launch a Brand by Fabian Geyrhalter are just two on Amazon.

Federal Trademarks. Let’s say you apply your new marketing skills and come up with a list of 5 to 10 possible names for your business. What’s the next step? I suggest heading over to the USPTO and doing a search of federal trademark registrations. And if any of your possible names match any word, and I mean any word, of a trademark there, then strike it off your list of possible names. Because it’s just not worth the possible consequences. Unless you have lots of money backing you up and you like to meet conflict head on.

State Trademarks and Entities. Trademark law is complicated by the fact that not only does the US Government register trademarks, but all 50 states also register them. You can engage a trademarks lawyer or search firm to search all 50 states, but before you take that step, you can search your own state databases of trademark and entity names. For example, in Florida, you can search for names of existing trademarks, corporations, LLCs, partnerships, and fictitious names by accessing databases on the Florida Division of Corporations website. Most states have similar databases.

Google. Finally, you’ll want to do a Google search of your possible names to be sure there are no businesses using a confusingly similar name. It turns out that another complication of trademark law is that trademarks don’t need to be registered. It’s true that registering a trademark gives additional rights to its owner, but common law trademark rights exist in most businesses in most states without registration. So, a Google search might identify more business names to avoid.

Ready to Hire a Lawyer. After you’ve whittled your list of possible business names down to those you think would not be confusingly similar to a trademark, it’s time to hire a lawyer to help you set up your business, legally. Because, believe it or not, there’s more to a business than its name.

For additional information, see the free ebooks written by St. Petersburg business lawyer James W. Martin on how to form a Florida LLC, Florida business corporation, and Florida nonprofit corporation.

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 Florida probate court recently confirmed this principle. A lawyer in North Carolina provided services in a Florida probate proceeding even though he wasn’t licensed to practice law in Florida. The court held he was not entitled to be paid a fee. Any fee. (The lawyer was asking for a very, very large attorney fee for representing an income beneficiary of a trust), but the court said he gets nothing. Nothing. Because he was not licensed to practice in Florida.

The North Carolina lawyer could have avoided this outcome by either engaging a Florida lawyer to work on the trust case in the Florida probate court with him or by asking the Florida probate court to admit him to practice in that one case. But he did neither so he lost the attorney’s fee entirely. The court even made the North Carolina lawyer return the fees he had been paid already.

The Florida probate court held that the attorney’s fee contract with the unlicensed lawyer was void ab initio, meaning it was void from the beginning, from the moment it was signed. The court noted that in Florida it is illegal to practice law without a license. It is a felony. The court went on and said:

“…[T]he fact that a client knows the attorney he employs is not admitted in Florida should not permit an unlicensed attorney from recovering for illegal activity. Allowing an attorney to recover fees for the unauthorized practice of law is a violation of public policy, irrespective of the private interests and understandings of the parties. The judicial power of this state should not be used to effectuate a violation of public policy.”

This means that a lawyer licensed in another state who provides services in a Florida probate proceeding is not entitled to be paid for those services unless he or she engages a Florida-licensed lawyer as co-counsel or otherwise receives court approval to appear in that case.

In this case, it was an expensive lesson for the North Carolina lawyer.

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.

For many decades, Florida law provided that the surviving spouse received half the estate* and the descendants shared the other half among themselves. This likely arose from public policy that both the surviving spouse and children needed assets to survive, but it also surprised many young couples. If a young father died without a will, half his estate would pass to his wife and the other half would go to a guardian for his minor children. Inheriting half the father’s assets at age 18 is probably not the best way to learn financial independence, so most parents made wills or held their assets in joint names as tenants by the entirety to avoid this result.

Along comes the 2011 Florida Legislature to the rescue. It enacted a law that amends the Florida Probate Code effective October 1, 2011 to provide that the entire estate passes to the surviving spouse if (a) the decedent died leaving a spouse and one or more descendants, (b) all of the decedent’s descendants are also the surviving spouse’s descendants, and (c) the surviving spouse has no other descendant.

It’s still a good idea for a young couple to make a will and to hold assets jointly as tenants by the entirety, but the new law will eliminate the surprise of a surviving spouse having to share assets with children when a spouse dies. It remains to be seen whether those children will be surprised to learn they get nothing.

*Actually, the law provides that, if all the decedent’s descendants are also descendants of the surviving spouse, then the spouse receives the first $60,000 before dividing the rest in half.

And for the probate court to decide, it needs to have all the wills that person ever made. So, if a rich uncle dies and leaves two wills in his desk at home, the person who finds them needs to file both of them with the probate court, and not just the one closer to date of death (and certainly not just the one that names that person).

In Florida we have a law that requires all wills to be filed within 10 days, and the law has teeth in it.