Can a judge deny a partition?

Posted By on May 26, 2016

According to Florida case law as of the date of this article, in extreme cases, a judge can deny a partition if the judge determines that equity will not result if the remedy of partition is granted.

See: Condrey v. Condrey, 92 So. 2d 423 (Fla. 1957)

 

Related:

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

If you found this information helpful, please share this article and bookmark it for your future reference.

How do Express and Implied Warranties in a Florida Real Estate Closing Help Buyers and Sellers?

Posted By on May 24, 2016

Buying or selling real estate here in Florida? If so, it is very important that you understand what all of those paragraphs in your sales contract mean to your purchase.

Why? In a Florida residential real estate transaction, the written sales contract will control the transaction. Anything that was said by or among the parties before the contract is signed will generally not be binding upon the Buyer or Seller (language to this effect is incorporated into most “standard” real estate contracts ). It doesn’t matter if the property is a single family home in a suburb or a condominium in a condo tower, or a town home or duplex. When dealing with the sale of real estate in Florida, the written signed agreement defines the rights and duties of the parties through closing (and afterward, in some situations).

For more on the power of that sales contract over the Florida home closing, read our earlier post.

Sellers and Buyers Need to Know Details of Their Real Estate Sales Contract

Which means, that buyers and sellers need to be aware of and understand the terms and conditions spelled out in the  paragraphs of the contract — provisions like the property inspection contingency, the financing contingency, the title evidence standards and the warranties that are defined throughout the agreement. Warranties impact both sides in a Florida real estate transaction.

Warranties are there to help protect the buyer as well as helping the seller by defining what the seller is (and is NOT) warranting in the deal.
 

South Palm Beach - buildings facing beach

Residential Warranties Apply to New Construction, Too


 

What is a Warranty?

A warranty is a provision in the document that identifies both the type and the quality of the property — or component of that property — that is being transferred or sold. There can be warranties in the sale of goods, like cars, for example. There can also be warranties in a real estate sale. It’s a kind of promise or guarantee of sorts that things are really as they are presented and expected to be.

From the Legal Dictionary, a warranty is defined as“.. an assurance, promise, or guaranty by one party that a particular statement of fact is true and may be relied upon by the other party.”

Warranties can be spelled out in the document itself, for each party to read and agree upon as a contractual provision. There are also certain situations where Florida law will impose a warranty into a sales transaction. These exist even if they aren’t mentioned in the deal.

For instance there is a legal “warranty of merchantability” when you buy a product off a store shelf in Florida (here, the seller warrants by law that the product is fit for the purpose for which it is sold). There is also an “implied warranty of fitness and merchantability” in some Florida real estate transactions (more on that later).

Warranty Deeds

Most everyone recognizes a “warranty” in connection with the type of deed that will be transferred to the buyer in the sale. There are General Warranty Deeds and Special Warranty Deeds in Florida as well as deeds attempting to transfer title with no warrants at all (”as is” transactions with a “quit claim deed”).

General Warranty Deeds and Special Warranty Deeds in Florida transfer title of the property from the seller to the buyer. As part of that transfer, the seller (”grantor”) gives a guarantee (”warrants”) to the buyer (”grantee”) that he or she really does own and have legal title in the home or condo that is being sold and transferred.

The warranties associated with a deed, can form the basis of a later lawsuit brought by the buyer against the seller if there is a problem with the title to the property. Meaning, the buyer can sue under the warranty deed for damages resulting from a defect in title.

General Warranty Deeds have no limitation. Special Warranty Deeds limit that warranty period to a specific time frame, which is the time that the seller owned the property.

In a Special Warranty Deed, the seller guarantees clear title for the period of time that the seller was owner, period. In Florida, most lenders (who are acting as a seller) will provide a Special Warranty Deed in any residential real estate sale that involves an REO property in order to limit that lender’s exposure for past title problems (that happened before they got title in the foreclosure lawsuit). Usually, REO sellers won’t sell their property unless the buyer agrees to accept a Special Warranty Deed.

Two Kinds of Warranties: Express and Implied

Legally, there can be two kinds of warranties in Florida real estate transactions: “express warranties” and “implied warranties”. Express warranties are described and identified in the residential sales contract. Implied warranties are imposed by Florida statute or case law.

Which means that if there is a problem after closing, then you will need to check not only the document language but Florida law to see what warranty, if any, applies in your situation.

For instance, in the purchase of a new home the Florida residential buyer should know that Florida law has created an “implied warranty of fitness or habitability” by the builder of that new home (and the seller if there’s a developer or seller separate from the builder involved). The new home comes by law with a warranty that it’s fit for living and habitable. Even if the sales contract does not contain this promise to the buyer by the seller, the buyer is protected by law via this legally-imposed warranty.

Disclaimers of Warranties in Residential Real Estate Sales Contracts

However, savvy builders and developers are aware that Florida law allows them to disclaim legally imposed warranties in the sales documents. If the buyer agrees to the disclaimer, then the seller will be free from responsibility. This is not easily done, thankfully.

In order for a builder or seller to get around the Florida implied warranty of habitability of a residential property, several legal hurdles have to be jumped. These include:

(1) having a disclaimer written into the contract;
(2) which is written in clear wording that the buyer can easily understand;
(3) and which is not ambiguous language that might later be read in more than one way;
(4) each item that is not warranted must be identified;
(5) the understanding on the part of the seller must be clear that this item(s) is not being warranted; and
(6) the understanding on the part of the buyer must also be clear in the document that there is no warranty for this item(s).

This written disclaimer of a warranty in a residential real estate transaction must also be clear that any other kind of warranty over the item(s), or any alternative protection or warranty over that item(s) is being renounced by the parties. See, Gable v. Silver, 264 So. 2d 418 (Fla. 1972) and McGuire v. Ryland Group, Inc., 497 F. Supp. 2d 1347 (M.D. Fla. 2007), on reconsideration in part on other grounds, 497 F. Supp. 2d 1356 (M.D. Fla. 2007) (applying Florida law).

Remedy For Breach of Warranty

Under Florida law, if a seller breaches a warranty, like the implied warranty of habitability, then the buyer can file a lawsuit against the seller to recover his or her damages.

For example, if a buyer purchases a condo on Miami Beach, only to discover after he or she moves in that the condo’s  central air conditioning does not adequately cool down the property, then he or she has a warranty claim against the seller because a latent defect (a hidden defect) caused a failure of the ac unit to meet ordinary, normal standards reasonably to be expected of a condo of comparable kind and quality.

And, the buyer still has a warranty claim against the seller of that real estate even if the seller tried to limit his or her  exposure with an express warranty in the sales contract that tried to limit his guaranty to one year. See, Forte Towers South, Inc. v. Hill York Sales Corp., 312 So. 2d 512, 17 U.C.C. Rep. Serv. 78 (Fla. 3d DCA 1975).

Florida Lawyers Can Help with Warranties in Residential Real Estate Deals

In Florida, warranties protect buyers and they create duties for sellers. For buyers, warranties provides peace of mind and protection when making a big purchase such as buying real estate. For sellers, these warranties are needed assurances for getting their home or condo sold; however, the language of these warranties need to be clearly written so that the seller’s exposure is clear and each of the party understands their rights and obligations.

Some warranties are legally required. Some warranties can be negotiated. An experienced Florida real estate lawyer can help both sellers and buyers here to make sure the warranties in their residential real estate contract are clearly indicated and understood by the parties.  Also, an experienced lawyer will know and share with the parties those warranties that are not written in the agreement, but that are implied in the law.

A good piece of advice if you are faced with a warranty issue, is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

If you found this information helpful, please share this article and bookmark it for your future reference.

What Happens If the Seller or Buyer Dies Before the Real Estate Closing?

Posted By on May 17, 2016

Sometimes, buying or selling real estate isn’t as easy as it is portrayed on TV. Even in a cash transaction where no lender is involved, the buyer and seller may have to deal with all sorts of complications, such as removing any clouds on title (like satisfying any outstanding mortgages or paying any tax liens) or satisfying any municipal violations (for things like overgrown grass or excessive trash on the property).

Which means it can take several days, if not weeks or months, before some Florida residential real estate transaction can close even when it’s a cash deal. (If the buyer needs a mortgage to buy the home, then it’s a given that it’s going to take some time before the deal can close: lenders have all sorts of requirements these days.)

 

Scale of justice gold

 

When Do The Buyer and Seller Have a Deal Under Florida Law?

The obligations to buy and sell real estate don’t happen until a legal contract is entered into between the buyer and the seller.  That happens when the buyer’s offer is accepted by the seller and the sales contract is signed by both parties.

What Happens When Someone Doesn’t Perform Under The Contract?

After the sales agreement is in place, failure of a party to perform a mandatory obligation (like giving a deposit) under the contract is considered a breach of contract; a breaching party can be sued for damages under Florida law (of course, most residential real estate contracts contain provisions which set forth the type of relief a party can seek when one party is in default of the contract).  (For information on what happens when a Seller defaults on a residential sales contracts, read our earlier post, “What Happens When a Seller Defaults on a Residential Sales Contract in Florida?”)

The signing of the contract begins the clock ticking on deadlines for the parties to meet, including the closing date.  During this process, lots of unexpected things can happen that can derail the transaction. The buyer or seller may have a change of heart about the deal, for instance, or one party may have a change in financial circumstances that may prevent them from closing the deal.

Or, the buyer or seller may pass away before the closing has occurred and before title has transferred to the buyer.

What happens then? What happens if either the seller or the buyer dies before closing occurs?

Does Florida Contract Law Control When a Party To a Real Estate Transaction Dies?

When either the buyer or the seller in a residential real estate deal passes away, Florida contract law will provide part of the answer to the problem. Under Florida law, when a party to a executory contract dies, that death will not void or nullify the contract.

That’s the general rule. The exception? An example is if the agreement is a personal services contract. For instance, if a singer passes away unexpectedly in his purple palace, then any Florida contract he had signed to perform in Miami would not remain enforceable.

A real estate contract is not a personal services contract. A real estate contract is an “executory contract” that remains legally valid until the closing is completed.

If a party to that Florida contract dies, then the contract remains valid.

When this happens to a seller, the personal representative of the seller’s estate must deal with the contractual responsibilities created under the sales agreement; the contract will be considered an obligation of the decedent’s estate.

Will Florida Probate Law Delay the Closing?

There can be complications here, of course. The personal representative may not have the power or legal authority to act on behalf of the decedent’s estate until the proper probate procedures are undertaken (the probate judge may restrict the personal representative’s authority by requiring all sales of real property be approved by the court). Undoubtedly, this can  force the original closing date to be delayed.

It may be possible for the surviving party — the buyer — to argue that the closing date being delayed is a reason to terminate the transaction altogether. A buyer that wants to back out of the contract after the seller has passed away, for instance, might use this extenuating circumstance to legally get out of the deal.

How? Most sales contracts have provisions and deadlines that must be strictly adhered to by the parties, and the seller’s death and resulting probate administration may make it difficult, if not impossible, for these deadlines to be met. This may allow the buyer to point to the time provisions as a basis for ending the deal and getting a return of his or her deposit.

When would a buyer want to do this? It depends upon the particular situation. However, if the seller passed away in the home or condo being sold, then the buyer may have some personal trepidation about moving into a property where someone has recently died.

However, if the buyer wants to continue with the transaction he or she is free to do so. There’s nothing that a buyer has to do to make sure the contract is valid and to continue with the transaction.

The buyer is considered to have “equitable title” to the property. When a seller dies before closing, the buyer has the legal right to have his or her claim to that property considered an equitable claim on the property even though the buyer has not filed any claims or demands with the probate court or with the seller’s estate. See, Buck v. McNab, 139 So. 2d 734 (Fla. 2d DCA 1962).

Closing With the Seller’s Personal Representative

The Florida Probate Code and common law allows for a seller’s personal representative to convey real estate.  However, as mentioned above, a probate judge may restrict the Letters of Administration (which often occurs in Miami-Dade probates) by requiring that any sale of real estate be approved by the court.

Depending on the status of the property, meaning whether or not the property was the homestead of the decedent, the personal representative, after obtaining court approval, may be required by the buyer’s closing agent, for title insurance purposes, to convey the property to the buyer by delivering a Personal Representative’s Deed.

Forcing the Sale After the Seller Has Died

There may be an occasion where the buyer wants to continue with transaction but the personal representative isn’t cooperating with getting the deal closed. Here, the buyer may have to take legal steps to force the sale.

This can be done (if the contract says this remedy is available to the buyer) by filing a lawsuit demanding “specific performance” of the sales contract. This type of lawsuit is filed in the probate court where the estate administration is being overseen.

In this situation, the buyer will argue that because land is considered unique under the law, simply returning his or her deposit is not sufficient or just and the right thing to do is to force the closing to occur. Here, the probate judge can order the personal representative of the seller’s estate to complete the closing and finalize the transfer of the property to the buyer.

What Happens When The Buyer Passes Away?

If it is the buyer that has passed away after the sales contract has been signed but before the title has been transferred then things are different. The buyer’s interest in that real estate is considered to be an “estate of inheritance.” The rights to the contract pass to the buyer’s heirs or beneficiaries and does not pass into the buyer’s estate. The deceased buyer’s personal representative shouldn’t be involved in making the decisions now.

Here, the heirs or beneficiaries must decide if they want to go through with the purchase or not. They can gather the cash and complete the transaction. If they choose not to do so, then the deposit made by the deceased buyer will be returned to them.

(Note: There are insurance policies provided by companies like AssureClose that offer sellers protection in the event that the buyer passes away before closing. In these policies, if the buyer dies, then the insurance company will buy the home from the seller.)

Are You Involved in a Real Estate Transaction Where There is an Unexpected Death?

Experienced real estate attorneys know how to deal with  an unexpected death of either the seller or the buyer in a Florida residential closing. Most will be familiar with Florida probate law and the steps that need to be followed in order to get a deal done.  They will know which documents to submit to the probate court and know how to “walk through” a petition authorizing a sale.

A good piece of advice if you are faced with the death of one party to a real estate transaction, is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
If you found this information helpful, please share this article and bookmark it for your future reference.

Is a Florida real estate contract enforceable where the contract allows the buyer to cancel without giving the same right to the seller?

Posted By on May 16, 2016

According to the case law as of the date of this article, the contract is unenforceable because it lacks mutuality. Meaning, both parties don’t have the same right.

See: Allington Towers North, Inc. v. Rubin, 400 So. 2d 86 (Fla. 4th DCA 1981)

Related:

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

If you found this information helpful, please share this article and bookmark it for your future reference.

In Florida, where do you file a breach of real estate contract lawsuit?

Posted By on May 12, 2016

According to the case law as of the date of this article and under the standard FAR/BAR contract, all the litigation shall be in the county where the property is located.

See: Sales v. Berzin, 212 So. 2d 23 (Fla. 4th DCA 1968)

Related:

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

If you found this information helpful, please share this article and bookmark it for your future reference.

What determines if you’re entitled to relief for a mutual mistake?

Posted By on May 9, 2016

According to the case law as of the date of this article, whether someone is entitled to relief for mutual mistake is determined from the terms of the contract or deed and the surrounding circumstances.

See: Martin v. Paskow, 339 So. 2d 266 (Fla. 3d DCA 1976)

Related:

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

If you found this information helpful, please share this article and bookmark it for your future reference.

In Florida, how can you rescind a contract for the sale of real property?

Posted By on May 5, 2016

According to the case law as of the date of this article, in order to rescind a contract, you must prove fraud or misrepresentation using clear and convincing evidence.

See: Scocozzo v. General Development Corp., 191 So. 2d 572 (Fla. 4th DCA 1966)

Related:

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

If you found this information helpful, please share this article and bookmark it for your future reference.

Is a Florida Real Estate Contract Void When The Method of Payment is Not Identical to The Terms of The Agreement?

Posted By on May 4, 2016

According to the case law as of the date of this article, if the seller accepts payment then the contract is not void because the seller has waived the obligation of the buyer to comply with that contract term.

See: Caldwell v. Snyder, 949 So. 2d 1048 (Fla. 3d DCA 2006)

Related:

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

If you found this information helpful, please share this article and bookmark it for your future reference.

Does a Breach of Contract By One Party to Florida Real Estate Contract Discharge the Other Parties Obligations Under The Agreement?

Posted By on May 3, 2016

According to the case law as of the date of this article, a material breach by one party to a real estate sales contract may be considered a discharge of the other party’s obligations thereunder.

See: Nacoochee Corp. v. Pickett, 948 So. 2d 26 (Fla. 1st DCA 2006).

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

If you found this information helpful, please share this article and bookmark it for your future reference.

Is it Too Late for a Purchaser to Withdraw Their Rescission Once the Seller Accepts it?

Posted By on May 2, 2016

According to Florida case law as of the date of this article, yes, it is too late for the purchaser to withdraw their rescission offer once the seller accepts it.

See: Hammond Realty Co. v. Wheaton, 90 So. 2d 292 (Fla. 1956)

Related:

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

If you found this information helpful, please share this article and bookmark it for your future reference.

css.php