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Home protection against hurricane damages

How to Dispute Insurance Coverage after Hurricane Damages

Hurricane Damages and Insurance Coverage

  During the months of June through November, we are immersed in a media blitz about storms and damages.  The State of Florida, which is surrounded by the Atlantic Ocean and the Gulf of Mexico, has a coastline of 8,436 miles, all of which are at high risk during a hurricane. Even those that don’t live on the coastline suffer heavy wind and water damages.  The report of a tropical storm or a hurricane brewing brings heightened anxiety levels and there can be immeasurable emotional wreckage following the storm. The history of hurricanes, such as hurricane Irma, hurricane Michael and the recent hurricane Dorian, caused devastating damages, for which there is major economic loss that may never be recovered. 

   The standard preparation for responsible homeowners and business owners, when a storm is approaching, is to do their best to secure loose items and trim or remove weak tree branches, especially around electric lines.  Creating a home inventory and reviewing your insurance coverage is imperative, if you need to claim damages.  Taking photos of your property prior to the storm, will adequately document the condition of your possessions.  When torrential rain, high tides or wind causes significant damages to your property, the results can be devastating.  Property owners are left to deal with roof and shingle damages, broken windows, flooding, moisture damages, destroyed porches, fallen trees and destruction of boats and other property.  Homes can be completely destroyed and become inhabitable.

   Insurance policies give us a false sense of security but insurance companies have an incentive to pay out as little as possible.  Your insurance policy is a contract between the insurer and the policyholder, in exchange for premiums.  This document determines the claims which the insurer is legally required to pay.  Following an event, an insurance adjuster will write a report of his subjective assessment of the damages.  This can result in a low estimate or a denial of the claim in total.  Some reasons that an insurance company will deny a claim or they may not pay for the damages in their entirety can be; policy exclusions, a missed payment can lapse your policy, coverage limit is reached but it’s not enough to cover damages, no documentation of damages, flood insurance needs to be a separate policy and/or pre-existing damage,   

   In addition to legitimate disputes between property owners and insurance companies, there are also a large number of questionable claims that need to be investigated and oftentimes, litigated in a civil court of law. While trying to deal with the trauma of your losses, insurance companies and property owners need to be aware of unscrupulous contractors that exploit customers during the confusion of a disaster.  Be wary of Assignment of Benefits fraud, which happens when you sign a deal that gives your contractor the right to bill your insurance company directly.

   The Boutty law firm will look out for your best interest and advocate on your behalf in a breach of contract dispute. You may be the property owner that feels your insurance company is unlawfully refusing to pay or you may be the insurance company that is disputing what appears to be a fraudulent claim. Or perhaps it is necessary to file for civil litigation regarding an untrustworthy contractor.  To learn more about how we can help you during this stressful time, schedule an appointment to discuss the details of your case.

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Is Sole Proprietorship the Right Business Structure for You?

You have a skill or a service to provide and now is the best time for you to start a business of your own.  Having done some research on the various types of business structures has left you with more questions than answers.  The most common forms of business entities are a sole proprietorship, a corporation, a limited liability company or a partnership. A sole proprietorship is basically an individual running an unincorporated business.  It is an attractive option for you, as you have limited assets for start up money and wish to endeavor into entrepreneurship as a sole owner.  It is a business structure that is used by many freelancers, consultants, contractors and home based businesses.  There is minimal record keeping required, as it is not formally incorporated with a state filing. It has flexibility, as it is not restricted by a formal business structure. That means there are no annual meetings, board meetings and the owner can make all the business decisions independently. Without having employees, there is no concern about group health insurance, workers’ compensation coverage and the like.  But is it really the right option?

   A sole proprietorship is a legal enterprise, whereas one person represents the company legally and fully. It is the most common business entity, however with it comes many legal, financial and business risks. That said, you have unlimited liability for the debts of the business. For example, a lawsuit from a creditor or a customer, for business related debts, injuries or insufficient service can put you into personal bankruptcy. In a sole proprietorship, taxes are filed with your personal taxes and an estimated tax amount is sent to the Internal Revenue Service quarterly.  In the event of an Internal Revenue audit, by co-mingling your business and personal taxes, you will be audited for both.   Another aspect of being a sole proprietor is that you are in charge of every detail of the business.  This includes, but is not limited to, marketing, financing strategy, leadership, providing customer service and actually doing the work. This may sound appealing, but in actuality, it can be a daunting task.   Even in a small business, this usually means long hours for work which can result in physical and mental exhaustion. Or if illness or injury is incurred, this could be the reason your business has failed.   Business loans are generally not available to sole proprietorships.  Most owners use personal funds, personal loans or credit cards which can come with high interest rates.  It is difficult to raise cash to grow the business, although there are some options such as crowd funding, angel investors and business grants.

The Boutty Law Firm understands the complicated world of business law and can provide guidance in choosing an appropriate business entity for your organization. There are pros and cons for each one and it is crucial that you make the right choice.  The Boutty Law team can assist with necessary county and state licenses, zoning and permits that are needed for many business operations.  Every business is unique and you need to be well informed about the legal ramifications of choosing the right or the wrong business structure.  Call today for an appointment.   

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Will and Testament

Do I need a Will, a Living Trust or Both?

Estate planning is an emotionally charged issue, regardless of your family dynamics.  Broaching the subject of financial matters and death can make everyone feel uncomfortable.  Yet, it is one of the most important conversations to be had, as the future financial security of your family depends on the planning that you do now.  If you have a spouse, children or financial assets, it is important that you engage in estate planning.  Both a Will and a Living Trust are useful planning tools and they are often used together. If there is no estate planning done before death, there are laws called intestate succession that controls how your assets are distributed. 

What is a Will?

   A Will is a document that outlines your wishes for your assets after your death.  Without a Will, the court will decide how to distribute your money and property.  This can be a costly and lengthy process for your descendents.  Creating a Will can give you peace of mind for the parents of young children, as it allows for the naming of a future Guardian, which otherwise would be the decision of the court. It allows for the naming of an Executor, someone that you trust, that can distribute your money and assets to beneficiaries.  However, a Will becomes a public record when submitted to the court and anyone is able to read about your property and assets.   

What is a Living Trust?

   There are two types of Living Trusts; there is a Revocable Trust and an Irrevocable Trust.  The Revocable Trust is most commonly used, as it allows for the Grantor (or trust maker) to make changes to the Trust, throughout the remainder of their life.  For example, you can transfer additional assets into the Trust or you can change the terms of the Trust at any time. Another advantage of the Revocable Trust is that the successor Trustee can take control of your property and assets if the Grantor is deemed mentally incompetent.  In that case, the successor Trustee can manage your property and finances while you are alive.

     When you set up an Irrevocable Trust, you are fully surrendering ownership of your assets.  This can be useful in some instances, such as Medicaid planning for long term care.  When applying for Medicaid for long term care, there is a five year look back of your finances, however this look back excludes any assets in an Irrevocable Trust.  The Irrevocable Trust also offers you safety from creditors.

    Both types of Living Trusts are private documents and not for public viewing.  This can be a desirable option.  But the primary purpose of creating a Trust is to avoid probate court.  Probate is not required to transfer ownership of your assets.  The successor Trustee has legal authority to make all decisions without court involvement.

Should I have both a Will and a Living Trust?

   There are advantages to having both of these legal documents.  A Will enables you to name a Guardian for your underage children.  A Will is also useful if you gain assets and your death occurs without having transferred these assets into the Living Trust.  These assets will need to be probated, however your Will can state that forgotten assets after you die, can be transferred into your Trust. 

Do I need an Attorney to complete a Will or a Living Trust?

   Don’t risk a costly mistake with your loved ones future. There are many complex issues that can arise when completing legal documents, in order for them to be valid.  Always have a qualified Attorney looking out for your best interest.  Call the Boutty Law Firm P.A. today!

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construction defect

Hidden Defects in Buildings

            Shelter is a fundamental human need.  Construction defects can render a shelter unsafe or outright collapse it, displacing families and bankrupting businesses.  Some defects are obvious: you wouldn’t buy a house with a collapsed roof.  But others, like wooden supports inside a wall, are invisible when purchasing or renting a building.  These latent (hidden) defects typically provide a stronger and longer basis for the purchaser to claim damages from the construction company.

            Florida law sets limits on how long purchasers have to file lawsuits regarding construction defects.  For most cases, purchasers have four years after occupying the building to take legal action.  This time limit is known as the statute of limitations.  But for latent defects, the four-year statute of limitations doesn’t start ticking until the time you discover, or could have reasonably discovered, the defect.  However, a ten-year statute of repose, starting from the time of occupancy, applies to all construction defects — even latent ones.  That means a family discovering a roof leak in their seven-year-old house only has three years to file against the construction company.  Since there is a grey area regarding what’s a discoverable defect and what’s a latent defect, it is best to contact an experienced construction law firm, like The Boutty Law Firm, as soon as the defect is discovered.

            When a construction company builds a building, it usually has prospective tenants or owners sign a contract to buy the building on completion.  This contract often contains clauses that specify how responsible the construction contractor is for defects.  The Levitz Furniture Company signed such a contract with Continental Equities, a construction company.  A year after Levitz moved into the new warehouse, the roof and a supporting wall collapsed, costing Levitz well over a million dollars in damages considering repair contact costs plus profits lost while waiting for repairs.

            Understandably, Levitz was ticked off when Continental tried to charge it $1.2 million for rent during the period of repair.  Levitz sued Continental for the damages and to get rid of the rent charge.  The case hinged over the contract Levitz signed, which said “Tenant, by taking possession thereof, will be deemed to have acknowledged that the demised premises, with all appurtenances, were in good order and condition when received by Tenant, latent defects excepted. [emphasis supplied]”  Since Levitz could not have reasonably discovered the hidden construction errors that led to the building’s eventual collapse, Florida’s Third District Court of Appeal ruled in Levitz’s favor.  In some cases, the contract will contradict Florida law, requiring an experienced construction law attorney to convince the court as to which should take precedence.

Purchasers of poorly constructed buildings require well-constructed legal arguments to recover thousands or millions of dollars in damages from repair costs, displacement costs, property loss, and resulting injuries.  For more information, contact The Boutty Law Firm at (407) 537-0543.

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Construction

5 Facts About Construction Liens in Florida (Part 2)

This blog is part 2 of our two-part series: 5 Facts About Construction Liens in Florida. Continue reading to understand what is needed to comply with construction lien laws in the state of Florida. Click here to read part 1:

4) Falsifying a Florida Lien Claim Could Cost You Jail Time

When filing a construction lien in Florida, it is important that all information associated with the lien is filed accurately and honestly. Exaggerating the claim on a construction lien is a 3rd degree felony in the state of Florida. Felonies are serious charges which can result in a prison sentence in some cases. Even without conviction, you may still face fines, legal fees, and other consequences if you don’t file your construction lien claim accurately.

Florida law does not permit construction liens to include charges that are not approved. Examples of unapproved charges include unauthorized work orders, unperformed work, or similar claims for damages. Taking care to avoid mistakes is essential when filing claims as it may be difficult to differentiate between accidental mistakes and willful exaggeration or fraud. Lien claimants in the state of Florida should not add costs, lien-related fees, interest, or attorney fees to construction liens.  Florida construction lien laws only permit claimants to include the actual permanently improved value of the property.

5) Construction Liens in Florida Have Deadlines

Florida construction liens are only valid for a specific period of time. Filing liens accurately and in a timely manner is critical to securing their value. Generally, a Florida construction lien foreclosure is due within one year from the date the lien is recorded. After this period, the lien expires, unless a lawsuit has been filed to foreclose the property and the lien. Under certain exceptions, the one year timeframe for the lien may be shortened by the property owner to 60 or 20 days from the date of recording. These exceptions include:

  • When a property owner gives a notice of contest of lien, the foreclosure period may be reduced to 60 days.
  • If the owner or party of interest files a lawsuit or complaint, the county clerk may issue a summons which can reduce the foreclosure period to 20 days.

Other Helpful Information to Know About Florida Construction Liens:

  • Florida law requires all construction liens to be notarized in order to be valid.
  • Florida construction liens do not require a legal property description, but they should include a basic description of the property for identification purposes.
  • In the event of payment, a construction lien may be cancelled by the lienor through a release of lien form or a waiver.  

If you are considering filing a construction lien lawsuit, a Florida construction attorney may be able to help. The Boutty Law firm is a Winter Park law firm that helps clients with construction liens as well as commercial and real estate law. For more information on how we can assist you, contact us today at (407) 537-0543.

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