Real Estate Listing and Contract

Real Estate Contracts and Disputes


In the selling or purchasing of property, there are
emotional aspects that factor into the decision making process for the buyer or
the seller.  When a homeowner is selling a
house and property, they may be grieving years of memories being left
behind.  A buyer may be excited about a
particular neighborhood and anxious about the scarcity of homes there. Part of the
work of a real estate agent is to help clients through the process.  The first step in buying or selling, is to find
a real estate agent that can help you confidently navigate a home purchase or
sale, one that listens to your concerns and knows the market.   The
listing agreement is the contract that contains the terms by which a real
estate agent can market a property. A valid listing agreement includes
information, such as the start and end date of the listing, the  price of the home, the agent’s compensation,
any monetary co-agreements with other real estate agents and the circumstances
by which the contract can be terminated. 





   There are several
types of listing agreements and they are all legally binding documents.  An example of these includes an open listing,
which allows for multiple real estate agents to compete for the sale of a
property.  It is the lowest level of
commitment to an agent, as even the seller may bring in a buyer and do all the
marketing. An open listing arrangement offers the seller flexibility and the
benefit of multiple agents.





   A one time show agreement
is a commission contract signed between a real estate agent representing a
buyer and a home owner.  The agent can
bring only one or a limited number of potential buyers to see the property, as
agreed upon with the seller, and receives a commission only if a sale occurs
with one of those buyers. This contract is useful in “for sale by owner”
properties, as the real estate agent only represents the buyer wishing to see a
particular home.





   An exclusive right
to sell is the most commonly used listing agreement. It specifies a real estate
agent that will receive commission on the sale of the home, regardless if the
home is sold through the efforts of someone else. It allows the agent or
brokerage, full and total control over the transaction, including marketing the
home, listing on multiple listing services and closing the deal.





      Many
real estate listing agreements are signed by sellers without fully understanding
the provisions in the contract, resulting in disputes. It is important to be
proactive and seek the advice and counsel of a real estate attorney prior to signing
an agreement.  If a dispute occurs, it
can be resolved through negotiations in mediation, arbitration or
litigation.  Some of the common disputes
occur due to breach of contract, when one party fails to follow the terms and
conditions of the contract.  This may occur
if the buyer fails to obtain adequate financing before the closing date or if
they fail to go through with the purchase due to other circumstances. Or if the
seller wants to back out after the contract is signed, it is a breach of contract.
 Breach of duty occurs if the real estate
agent acts in such a way that is detrimental to his client. A real estate agent
is a proxy for his client and therefore has a fiduciary duty to represent his
client’s best interest.  He must disclose
all the facts in an open and honest manner to the client. Some of the ways they
may breach the fiduciary duty are receiving fees not disclosed to the client,
failure to inform a seller of offers made on the property, failure to advise a
buyer of any defects on the property or acting as a dual representative to both
seller and buyer, without their knowledge. 
Another alleged claim in a real estate dispute can be the result of an
express and implied warranty breach. These terms relate to the quality of the
product and they are inclusive of a warranty to ensure a clear title to a property.
In new home sales, the warranty guarantees that the house will not have any
major defects that render it inhabitable and that the contractor has an
obligation to repair any of the work that has been performed.





    A real estate purchase is a major financial
and emotional journey that can be stressful and unpredictable.  The Boutty Law Firm has extensive knowledge in
both residential and commercial real estate law. If you are a buyer, seller,
construction professional or real estate agent with a legal issue, we can be an
advocate for your rights under the law. Protect your investment and call us for
a consultation today.   


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.


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.   


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!


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.


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.