RGLLAW's Legal Mailbag & Blog

What to do about an encroaching tree limb

Bob Lowe — Sun, 02 Mar 2008 13:27:00 GMT

Ever asked a neighbor to trim a tree limb overhanging your garage and been ignored?

Well, "… the rule at common law and the majority rule in this country, which is followed in Florida, is that a possessor of land is not liable to persons outside the land for a nuisance resulting from trees and natural vegetation growing on the land. The adjoining property owner to such a nuisance, however, is privileged to trim back, at the adjoining owner's own expense, any encroaching tree roots or branches and other vegetation which has grown onto his property." From Gallo v. Heller, 512 So. 2d 215 (Fla. 3d DCA 1987)

The privilege to trim the tree carries with it a responsibility not to do no harm to the tree or to your neighbor. In other words, you are responsible for trimming the tree in such a way that it does not harm the tree or cause the tree to die. If you do, you may be liable to replace the tree. And should also be cognizant of trespass issues which means that you should only trim the tree and its branches back to the imaginary extension of your property line that rises vertically into the air.

Changes to HOA Assessment Enforcement Statutes

Bob Lowe — Sat, 12 Jan 2008 14:26:00 GMT

If you need a bit more time to line-up financing or perhaps the sale of your property, the assessment enforcement statutes now allow an owner to file a "qualifying offer" with the foreclosure court that requests a temporary halt to the foreclosure proceedings of up 60 days.

The bad news is that as part of their "qualifying order" owners must include a statement in their order agreeing to pay all fees, including interest that may accrue during the stay, which according to statute, if not specified in HOA documents will be 18%!.

Other changes include specific requirements for notice that the HOA must properly adhere to prior to initiating an action to foreclose and that the owner, no matter how title was acquired, who owned the property at the time the assessment was levied is ultimately responsible for the assessments.

Florida Homestead Protections and Divorce

Bob Lowe — Wed, 20 Jun 2007 13:26:00 GMT

Any time a married person purchases real property in the state of Florida his or her spouse will automatically have an interest in the property because of the homestead protections provided in the Florida Constitution. The homestead rights were included in the constitution as a way to promote Florida families and attach automatically by operation of law and cannot be negotiated or contracted away.

This is especially important to couples who are in the process of divorce and are contemplating the purchase of new homes. There are strategies that can and should be employed to protect your purchase and facilitate your independence. Be sure to ask your family and or real estate attorney for assistance otherwise you may inadvertently cloud title to your property.

Save Our Homes Tax Cap and Deeds

Bob Lowe — Wed, 20 Jun 2007 13:13:00 GMT

Almost every Florida resident homeowner knows that the Save Our Homes Tax Cap attaches to regulate the increases in our real property taxes as a result of applying for homestead exemption.

What may not be so clear is when a deed into trust or a quitclaim deed establishing a life estate without the containing a clear statement as to the continuation of equitable ownership the deed may be considered a conveyance thereby triggering the removal of the homestead protection and Save Our Homes Tax Cap resulting in an increase in your real property taxes.

Generic, store-brought or other do it yourself deeds may not and probably don’t contain the correct language to protect you from this possibility; that is why RGLLAW recommends that you hire an attorney to assist you with this process.

Investors Who Buy Homes - Friend or Foe?

Bob Lowe — Sat, 02 Jun 2007 13:01:00 GMT

I have received an alarming increase in calls from home owners trying to sell their homes themselves who have been legally scammed by greedy real estate speculators. Mostly these situations have occurred when the homeowner is experiencing money problems, but not always. And not all real estate investors are bad, many are honest, reasonable people; but a few bad apples are really tarnishing the reputation of the group as a whole.

I have reviewed several situations where Contracts for Sale and Purchase or Option Contracts are totally unenforceable; some because of vague or missing terms and some because of insufficient consideration. I have seen investors purchase property considerably below market value; investors are not legally obligated to be fair or reasonable in their dealings with stressed out homeowners! And at least one cheeky local investor purchases property subject to existing mortgages, which means that the borrower / former homeowner remains primarily liable for payment but no longer owns the asset!

If you find yourself in a jam and think you need to sell your house, I heartily recommend that you contact a couple of local real estate agents for a free market analysis so you can get a solid understanding of how much your property might be worth. One of the greatest, even insurmountable strengths you can have in any negotiation is knowledge and the knowledge of how much your home might is worth is extremely important when considering your options. There are many reputable real estates agents, but I am a bit partial to this fine family owned brokerage: Lowe and Sons, Inc.

I would also heartily recommend that before you sign any offer you have it reviewed by an attorney, especially if you are trying to sell your home yourself. An hour or two of legal consultation is cheap insurance and could possibly save you from making an expensive mistake when dealing with some of the bad apple investors who are more than willing to benefit from your financial problems.

Surface Water Rights

Bob Lowe — Sat, 12 May 2007 12:08:00 GMT

Under common law water was viewed as a common enemy and the rule was that land owners were obliged to do what ever it took to protect their lands from water problems regardless of the impact on their neighbor. Some states adhere to that, but most have at least modified the common enemy doctrine such that landowners should at least try to redirect the water in such a way so as to not harm their neighbors. By comparison, Florida and others take the additional step imposing an affirmative duty on land owners to make sure that water redirected from their property does not harm their neighbors. You can't simply redirect water away from your property and assume that you haven't created a nuisance for your neighbor, you have to look and make sure that your actions haven't harmed your neighbor.

"Pure" or "Constitutional" or "Common Law" or "Contract" Trusts

Bob Lowe — Sat, 24 Mar 2007 01:41:00 GMT

The only thing pure about any of these types of trusts is the evil that lurks in the con artist's heart! Trusts are valid estate planning or asset management vehicles and can provide a great deal of protection and serve many legitimate purposes; but they can not and do not provide an absolute shelter from taxes, personal liability and / or accountability as many suggest. A contract for an illegal purpose is void ab initio or from the beginning. And even if the trust isn’t absolutely void then you should know that every state has statutes providing mechanism to pierce the veil of secrecy surrounding trusts and hold the underlying parties accountable whenever a trust is used in some illegal way or wrongly asserted to avoid personal liability.

Are sinkhole disclosures mandatory?

Bob Lowe — Mon, 19 Mar 2007 18:27:00 GMT

The only specific statutory disclosure pertaining to sinkholes is Florida Statute 627.7073(2)(b) which states in pertinent part: "The seller of real property upon which a sinkhole claim has been made by the seller and paid by the insurer shall disclose to the buyer of such property that a claim has been paid and whether or not the full amount of the proceeds were used to repair the sinkhole damage."

Generally, sinkhole activity also needs to be disclosed, I believe, because of the holding in Johnson v. Davis which can be found here and which states that sellers have an affirmative duty to disclose "... facts materially affecting the value of the property which are not readily observable and are not known to the buyer."

To give context to the court's holding, affirmative duty means that the seller has an obligation to make a statement to prospective buyers about issues that they are aware of regardless of whether or not they buyer asks; it does not require the sellers to disclaim or make an affirmative statement about issues that do not exist.

How to become an advocate for your child

Bob Lowe — Thu, 08 Mar 2007 15:30:00 GMT

In order to help your child you need to become an effective advocate or hire an attorney who can advocate for you. If you are going to do it yourself, then you need to arm yourself with information.

In my experience schools are slow, cumbersome bureaucracies sometimes unlikely to respond to generalized requests for help. If you simply say to the school that your child needs help, the most likely response you’ll get is that your child is smart but underachieving and needs to work harder and smarter. However, once you understand the rules you can overcome this blanket rejection by including references to rules that require the school to act.

Therefore the very first place to start is with your particular school system’s codes of conduct, rules and / or operating procedures. Get copies of everything they have and read it and make notes on the sections that pertain to protections and requirements concerning providing services to kids with learning disabilities and any other pertinent sections. Pay particular attention to the rules and or procedures the officials, principals, administrators, school boards are supposed to follow. Armed with knowledge you will be able you to focus your requests in ways to motivate the school to respond. When the school says that your child needs to work harder and smarter you can artfully reply with the requirements and or obligations the school must provide to requests for assistance and any time frames the school has to provide them. Mastering the schools own requirements will be the biggest single lever you have to motivate your school to act appropriately.

If you don’t do anything else mastering the schools own rules may be sufficient to getting your child the assistance he or she needs. However to truly understand and mange your school system then you should read or research the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act. These are the two primary federal laws imposing requirements on public school systems to ensure that students with disabilities are provided a “free appropriate public education” (FAPE).

Next, read or research state and local provisions regarding special education. You’ll begin to notice a lot of similarities with the federal law and you should see parallel requirements in the state and local provisions.

Knowledge of federal and state requirements will make your requests even more compelling and allow you to overcome vague objections to your request for services. This may seem like a lot to read and may be overwhelming at first; but there really are no shortcuts. You might find some support from groups and others from parents who have been where you are now but your own efforts are your best resource.

Beware the School Experts

Bob Lowe — Thu, 08 Mar 2007 14:45:00 GMT

I once had a school psychiatrist tell my wife and I that she knew our child better than we did after simply reading the material contained in the school’s file and observing the child on several occasions. That’s right, she never even spoke or interviewed the child and yet she decided that she knew more about our child then we did and she even admonished us that what we wanted for our child was harmful. This was the one of the worst moments in my experience being an advocate for my child. My wife and I were surrounded by a bevy of teachers, guidance personnel and administrators all confirming the psychiatrist’s opinion and suggested course of action. My wife was in tears, I was conflicted and yet, ironically, steeled by her outrageous claims. Because there is no absolute way to know if what you are doing will produce the hoped for results when advocating for your child the process is fraught with second guessing, self incriminations and doubt. We stood our ground, maintained our demand for services to be included in our child’s IEP and finally the school relented. As we were leaving and wondering whether or not we had made the right decision for our child the psychiatrist approached us in the lobby and castigated us further for going against her recommendations. Her amazing audacity and callous disregard for our opinions instilled in me an intense hated of her stupidity.

The intervening years since we made those demands were racked with fear of failure and concern for our child. Fortunately the demands we made that day have worked to the advantage of our child and we are extremely pleased with the results.

The point is that parents advocating on behalf of their children should be prepared to suffer similar outrageous suggestions and assaults. As an advocate you need to understand your child and consider the advice from others but you need to stick your ground when you know you are right. If the course of action we demanded that day had produced some unintended side effect then we would have requested another meeting and made changes to our child’s IEP and fine tuned the support received until we found a formula for success.

Life Estate Deeds

Bob Lowe — Thu, 08 Mar 2007 06:28:00 GMT

A life estate deed is useful estate planning tool that helps minimize legal fees associated with probate and the conveyance of your real property after death. It is a viable, less expensive alternative to the more flexible living trust.

During probate in Florida the presiding judge is required to oversee and approve the sale of the deceased’s real property to protect the interests of the deceased’s beneficiaries. And if a judge is involved, you can bet that a probate attorney is probably needed to represent the estate’s interests as well. Life estate deeds side step the involvement of probate judges and attorneys by automatically conveying the deceased’s real property by operation of law to those designated in the life estate deed.

While all this may sound good, a problem arises with a typical or regular life estate deed when and if you need or want to access the equity in your property perhaps by taking out an home equity line of credit or a reverse by mortgage and you can't. Similarly if you need to sell your property because you need the money or want to move you can't. You can't because according to the law you don't own full title to the property.

An "enhanced" life estate deed, sometimes known as a “lady bird” deed, solves these problems by allowing you to retain full interest and powers to sell, convey, lease and / or mortgage your property just as if you held full title to the property and still name the person or persons to whom you want the property to be conveyed to upon your death.

An improperly drafted, executed and recorded enhanced life estate deed may be considered a conveyance and have severe unintended consequents. Of primary concern to most Florida homeowners a conveyance may trigger loss of your Save our Homes Tax Cap status and allow the property appraiser to recalculate the assessed value of your property and cause a sharp increase in property taxes. Or a conveyance may trigger the due on sale clauses in any outstanding mortgages or loans allowing the lender to demand full payment of the underlying note. It is important that you consult an attorney for assistance with the drafting of an enhanced life estate deed.

Please note that the following are general responses to questions and do not and should not be considered as the rendering of any legal advice, nor does it constitute an attorney client relationship. Because specific circumstances vary with each situation the observations provided here may not apply to you or your situation. If you need legal assistance, it is always best to speak directly to an attorney.