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Property defects: property inspection

Failure to Disclose Property Defects in Real Estate

   The purchase of real estate is perhaps the most significant financial investment of a lifetime. There is a strong emotional attachment to real estate as it signifies a new beginning for a buyer. After having carefully researched and inspected a property, a buyer feels confident as they close the sale and enter into ownership. Eventually, the buyer may discover that there are undisclosed defects which affect the property value or prevent the property from being used for its intended purpose. What is the legal recourse for damages from the buyer after-the-fact?

 Real estate law in the State of Florida requires the seller of a property to disclose significant material defects that affect the property’s market value. If the seller has not disclosed defects, either by failing to remember or by deliberate concealment, the buyer is entitled to monetary damages. Even if real property is sold “as is,” the buyer is culpable for damages if they have not complied with full disclosure. For example, after the sale of a property, a buyer may find a damaged roof or water seepage, mold, or septic problems that were not obvious at the time of purchase. There may be environmental issues, such as radon gas, a history of sinkholes, zoning violations, boundary disputes, or coastal erosion.  

The Boutty Law Firm P.A. Protects its Clients’ Interests

The purchase of real estate has many complexities. When entrenched in a dispute regarding a failure to disclose property defects, it is in the buyer’s best interest to hire an attorney with substantial real estate experience. The Boutty Law Firm P.A. handles all aspects of real estate and construction law. Our skilled attorneys offer compassionate legal representation for disputes in negotiations, mediation, or courtroom litigation. We have a strong presence and can find practical solutions or powerful advocacy in the courtroom.

 In a Court of Law, the Elements of a Non-Disclosure Case are:

  • The seller must know about the defect.
  • The defect must affect the market value of the property.
  • The buyer must have evidence that the seller failed to disclose the defect.
  • The defect must not be readily observable to the buyer.  

Although not required by law, many real estate transactions utilize a Florida Disclosure Form to sell a property. It is critical that the buyer and the seller document defects, which become enforceable in the event of a dispute. Some of the items addressed in a Florida Disclosure Form are issues related to the structure of the building, pest infestation, water intrusion, plumbing, roofing, sinkholes, and environmental defects. The Residential Lead-Based Paint Hazard Reduction Act of 1992 is a Federal law that protects the buyer regarding the presence of lead-based paint in a property if built before 1978.

Boutty Law Firm P.A. Serves Central Florida and the Surrounding Areas

   In any real estate transaction, the purchase documents are your legal safeguards for the protection of the buyer and the seller. To prevent disputes, The Boutty Law Firm P.A. will review and scrutinize real estate contracts for legal risks. Undisclosed property defects that the buyer discovers after the purchase of real estate is a breach of contract, and you have legal rights. Call our Winter Park, Florida office at 407-622-1395 for a free initial consultation to discuss an undisclosed defect dispute or any real estate law aspect.  

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Housing Market Projections

Housing Market Forecasts for 2020

   Happy New Year!  While many are trying to adhere to their New Year’s resolutions, such as dieting, exercise, maybe finding a new job or a new relationship, real estate investors are on an emotional rollercoaster about the prospective housing market for this year.   Expert predictions of real estate trends for Florida in 2020 are variable, at best, with some market predictions for the Sunshine state being positive and others projecting a doom and gloom forecast. 

   Over the past decade, the housing market across the United States was strong, with the number of investors and buyers often exceeding the availability of inventory.  This was a consequence of a thriving economy, with low unemployment rates, low interest rates and various other economic factors.  Potential buyers and sellers were able to fulfill their dreams.  Although real estate forecasts can differ from state to state, the Florida Realtor Association recently reported that housing sales were up, almost by 15% in November of 2019 and the housing inventory was low.  While this appears to be good news for the housing market in 2020, there are inconsistencies in the economists’ predictions for the year ahead. According to a study done by the 2018 Q2 Zillow Home Price Expectations Survey, a study which included the polling of one hundred real estate experts and economists, they believed we will be entering into a housing recession beginning this year.  However, as 2019 progressed, Zillow recanted that position, advising that there will most likely not be a recession in 2020, as the economy has shown signs of growth and there is healthy consumer confidence.  In a survey that was conducted in August, 2019, of more than 200 economists, by the National Association for Business Economics, 72% believe there will be a recession, beginning in 2020. They cited trade policy, stock market volatility and rising interest rates as likely reasons for the next recession. In spite of the negativity of some real estate predictions, many believe that it is likely that the Florida real estate market will continue to flourish and it is a favorable environment for a lucrative investment.  Florida is the fastest growing state in the country, with Central Florida having the fastest growing cities in the United States.  There continues to be a high influx of northerners, immigrants from other countries and tourism driving the economy.

   While the real estate market is cyclical, with periods of high and lows, one thing is certain; every real estate transaction, whether buying, selling or leasing residential or commercial property, is best handled by a knowledgeable real estate attorney. The services of an attorney can safeguard your rights and ensure that you negotiate and close the deal, while protecting your interests and assets.  Whether you are a business owner, a real estate investor, an inheritance beneficiary, or an individual buying or selling your home, the Boutty Law Firm is experienced and effective in real estate and business law transactions.  Start the New Year off right, by calling for a consultation to discuss your real estate goals with a trusted attorney.   

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Commercial Property Lease Agreement

Consider these Factors Before Signing a Commercial Real Estate Lease

   For entrepreneurs or experienced business owners seeking to rent a commercial space such as an office, industrial property or a retail store, it is essential to understand the negotiations that are necessary before signing a lease agreement. 

A lease agreement between a landlord and a tenant, for the purpose of doing business, is more complex than a residential rental agreement.  It is in the best interest of a potential tenant or a commercial property owner to have the lease agreement reviewed by an experienced commercial real estate attorney, to determine if the terms of the contract will be suitable for the needs of the business. 

Some of the terms that are required in a binding commercial lease are the initial rent and future rent increases, the duration of the agreement, the security deposit, improvements to the property and if they are completed by the tenant or the landlord.  Other terms include the ability for the tenant to sublet space, the placement of signs due to zoning ordinances and landlord preference, an exclusive clause to prevent the landlord from leasing another unit to a competitor and compliance issues related to the Americans with Disabilities Act.

The leasing contract needs to address the renewal terms, in the event that the tenant wishes to stay in the current location after the expiration date of the lease.  Federal law requires that if a unit was built prior to 1978, it is mandated that the landlord include a disclosure statement if there is the possibility that lead paint may be present in the unit.  A radon gas disclosure is required, if radon gas levels have been found on the premises above the levels of federal and state guidelines.  A commercial lease should document how the lease can be terminated, in the event the tenant is unable to stay full term. 

It is important to know if the tenant can sublet the space, in part or in its entirety. There are circumstances whereas the tenant closes the business or wishes an alternate location and the lease needs to specify if it can be transferred to another. Commercial leases are offered on the basis of rentable square footage instead of usable square footage.  This means that in a shared building, the tenant pays not only for the square footage you are able to use, but also for a portion of the common areas. An example of shared spaces includes the hallways, restrooms, elevators, stairwells, storage areas and lobbies. 

   There are various types of lease agreements that can be negotiated for entering a rental arrangement with a commercial entity. A gross lease typically is an agreement that the tenant pays a monthly amount that is inclusive of all expenses regarding the property, such as the property taxes, insurance, maintenance and utilities.  This is a set fee that gives the tenant an expectation of exactly what their monthly expenses will be.  Other types of agreements are triple net leases, double net leases, single net leases and modified gross leases.   Each variation allows for different calculations of payment for the expenses of the property, divided between the landlord and the tenant.

   Starting a business is an exhilarating experience, however commercial leasing contracts must be handled proactively in the negotiation phase to minimize or prevent future litigation issues.  The Boutty Law Firm has extensive experience in all real estate matters. We can counsel and represent you in the initial phase of a rental agreement or with disputes that can result from the tenant or landlord’s breach of the lease, terminating lease agreements, constructive eviction and delinquency in rent eviction proceedings.  If you are a commercial property owner or a tenant, let the Boutty Law Firm handle your diverse business needs.

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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.   

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5 Risks of Purchasing a Foreclosure

There are many ways to make money in the real estate industry, and people are always looking for an opportunity to invest. In some cases, an investor may consider purchasing a home which has been foreclosed, as foreclosed homes normally come with low asking prices. But is it really worth it to buy a foreclosure, and will your investment pay off in the end? Continue reading why it may be difficult to get a return on a foreclosure investment.

  1. You will be purchasing the house “as is”

Foreclosures occur when a lender repossesses a property from a borrower who failed to maintain the mortgage payments. The lender then offers the home for sale at a public auction for foreclosures. The highest bidder at the auction will purchase the condition as is, meaning there will be no improvements to the property prior to purchase, and all liens, unpaid taxes, and encumbrances will come with the property.

  • The property may still be occupied

There are few things more awkward than buying a new home and immediately having to evict its previous owners because the property is still occupied. Unless you are familiar and experience with the process of evicting tenants, it’s helpful to have an attorney delegate this process for you.

  • There won’t be any inspections

Normally, when you purchase a property that is not a foreclosure, you have the opportunity to have a formal inspection: first, when you visit the open house, and second at the time of purchase. When the home is a foreclosure, however, there will not be a professional inspection of the property, and chances are you will not enter the home prior to the foreclosure auction, either. Without an inspection, you will not be able to see what kind of condition the property is in or what repairs will be needed.  

  • It can be time consuming

The process of purchasing a foreclosed property is not the same as purchasing a regular property. Buying a foreclosure is more complicated as the process includes waiting periods which vary depending on what state you live in. Also, if you are purchasing the property from a bank, there are often multiple forms and approvals that are necessary to make the purchase. Purchasing a foreclosure can have many delays, and if the previous owners file for bankruptcy protection, it may even stop the sale.

  • The property may not actually pay off

In the beginning, the lower price of a foreclosed property may seem enticing, but in the long run, it may not turn out be a good deal or a wise financial investment. After spending money to remove the liens, complete all the necessary renovations, and pay back taxes, the payoff for the property may leave you feeling disappointed.

      The Boutty Law Firm is experienced in helping individuals and families throughout central Florida with foreclosures and other legal real estate matters. For more information, contact us at (407) 537-0543

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