19 Reasons To Hire a Real Estate Lawyer When Buying or Selling Florida Real Estate

Posted By on April 15, 2014

In Florida, particularly South Florida, families want to own a home; retirees want to buy a condo or townhouse; investors from around the country and world want investment property, including rentals; and vacation homes in or near the water are a dream of almost everyone. For most buyers, the purchase of a home, condo, or vacation property is one of the most important purchases they’ll make and a major financial event in their lives.

Regardless of where they reside (here, another state, another country), Florida law will control their purchase. Each transaction will have its own quirks and unique characteristics, of course: homeowners’ association restrictions; environmental requirements; etc. So, if you’re buying or selling property here in beautiful Florida, hiring a real estate lawyer can protect you as well as help you close the deal without a hitch.

Thus the question; When will a Florida real estate lawyer be helpful? Consider these 19 thoughtful reasons for hiring a Florida real estate attorney.

19 Reasons to Hire a Real Estate Lawyer When Buying or Selling Real Estate in Florida

1. Does the property have illegal additions or illegal improvements? Buyers need to know if local codes and state regulations have been followed, and if they haven’t, what to do about it (before or after closing or should the closing occur).  What happens if a buyer is required to remove an illegal addition after closing?  Does the Seller have a duty to disclose an illegal addition to the buyer?  What are the buyer’s rights after the closing?  Can the buyer sue for damages or seek to rescind the transaction?

2. Are you buying or selling a house with a non-cooperative partner or co-owner?  You need to know if a Partition action may be necessary under Florida law.  Will one co-owner need to sue his/her partner in order to complete the sale of the property?

3. Are you an out of town buyer? If you’re from another part of Florida, or from another state or country, then you may not be aware of specific municipal, county, state, or even federal regulations that apply to you and the property.  Are there tax withholding requirements?  If so, are there exemptions that apply that would alleviate the tax withholding?  Who pays for transfer taxes and how much are they?

4. You don’t trust or have lost confidence in your real estate agent or the closing agent/title company. Often, hunches prove true: if you have lost trust in these professionals, you need to know their legal duties to you and what to do if they’re failing you in some way.

5. Are you buying a property that is a short sale or bank owned? REO properties and short sales involve special conditions and a Florida real estate lawyer with foreclosure defense experience can be invaluable to you in negotiating with the bank and reviewing the title work to insure that you are receiving marketable and/or insurable title.

6. Are you buying or selling a property that is part of a trust or a probate administration? Here, a trustee or personal representative will be representing the interests of the beneficiaries or heirs, and creditors, and having a Florida real estate lawyer will help in jumping the hurdles of trust law and probate court.

7. Are you buying commercial property (apartment building, warehouse or shopping plaza)? Any commercial real estate transaction involves complications not seen in simpler residential real estate deals; having a Florida real estate lawyer is important here because of additional legal issues including easements, corporate ownership, leaseholds, environmental issues, structured financing, tenant claims, and more.

8. Are you buying a property that could have structural issues? Florida real estate lawyers can help buyers who need to perform inspections to learn about the condition of the property prior to purchase as well as seller disclosure responsibilities under Florida law.

9. Are you concerned the property won’t appraise for the purchase price? Appraisals can be challenging, and different appraisers may have different results; a Florida real estate lawyer can help buyers and sellers determine what to do, or recommend contract clauses to address appraisal issues,  if there are varying appraisal valuations or if the property appraises for less than the contract price.

10. Do you want an attorney to hold your deposit just in case there is a problem with the transaction? Florida lawyers can act as escrow agents. Do you want a third party holding the earnest money deposit(s)?

11. Are you concerned that you may not qualify for financing and you may lose your deposit? A Florida real estate attorney can suggest contract clauses to address this issue, including returning the deposit to the buyer if the buyer is unable to obtain prevailing market financing.

12. Are you concerned the seller and/or real estate agent aren’t telling you something about the property? Not every seller or real estate agent is honest and above-board; if you are suspicious, then a Florida real estate lawyer can help you get to the bottom of things or suggest contact language to address these concerns.

13. As the seller, do you feel that something could go wrong based on knowledge you have about the property? Florida law defines a seller’s duties to the buyer and to the property, and a Florida lawyer can explain them to the seller as well as the ramifications down the road if the buyer has a problem and wants to hold the seller responsible.

14. Do you have judgments or liens against you? Florida real estate lawyers can help you here by explaining the affect of a lien.  Is the property being sold Homestead property?  If so, there are procedures a seller can take in order to complete the transaction even if there are judgments.

15. Do you want someone to tell your real estate agent that you don’t want to pay their “administrative fee”? Having a lawyer means that the attorney can speak for you.

16. Does a tenant have to be evicted? Florida landlord-tenant law is detailed, and landlords/property sellers must be careful to conform to the law.  Are you a buyer purchasing a property with an existing tenant?  What are the buyer’s obligations to the tenant in this situation?  What happens to the security deposit and advanced rent?  Does the tenant have claims against the old landlord which are now the problem for the new owner?

17. Do you what to make sure when you arrive at the closing the title company doesn’t require you to sign documents that you are not obligated to sign under the Real Estate Contract? An experienced Florida real estate lawyer will review the closing documentation and advise the Buyer, and seller, if they are required to sign all of the documents presented by the title company, including cooperation agreements, utility hold-back and tax re-proration agreements.

18. Do you want an objective 3rd party reviewing the seller documents, mortgage documents and the closing statement at or before the closing? Again, a Florida lawyer’s eye on closing documentation can protect you and yours from excessive or inappropriate fees and costs.  Is the appropriate party paying for an item and have all expenses been collected and/or properly allocated between the parties?

19. Do you feel comfortable signing a 6-10 page legal agreement that your real estate agents says is “standard” or “customary” without an independent party giving you advice and guidance? A Florida lawyer can explain the impact of that agreement upon you, and will advise what you’re being asked or required to do under its terms.  Where is the deposit being held and what are the terms upon which it may be forfeited?  What happens if there are title issues?  How are they resolved?  Is there a seller disclosure form? When are the condominium documents going to be delivered to the buyer? Does the buyer know they can cancel the contract within 3 days of the receipt of the condominium documents?

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

Dyck-O’Neal Increases Florida Deficiency Judgment Collection Efforts?: 19 Articles About Florida Deficiency Judgments

Posted By on April 8, 2014

I believe in an effort to meet the July 2014 deadline related to Florida deficiency judgments, in appears as if Dyck-O’Neal has been aggressively filing lawsuits to collect on old foreclosure judgments. In our office, I’ve been receiving a lot more calls about these types of cases, with most of the lawsuits being filed by a Tampa law firm (Daniel C. Consuegra, Esq.). Since things may be heating up again, I thought it would be a good idea to share some articles we have written in the past about deficiency judgments.  Here are 19 articles that we hope you will find helpful:

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

Lost Notes in Florida Foreclosure Cases: Banks Must Prove Their Case With Valid Legal Documents

Posted By on April 1, 2014

Lost Note and Your Foreclosure Defense: How Can The Bank Foreclosure If They Cannot Find the Original Promissory Note?

Even though the dust has settled here in Florida from all of the Foreclosure Fraud, and the mortgage fraud settlement is completed, there’s still a lot of foreclosure victims out there; we’re still seeing people who need foreclosure defense help, especially where the bank has lost the borrower’s promissory note.

We’ve posted in detail about how Florida law requires banks to provide proper documentation to pursue a Florida foreclosure lawsuit. Specifically, Florida law requires that banks provide authentic and admissible evidence in order for them to foreclose. Included in that evidence, is the production of the original promissory note.

Florida banks have an evidence duty to provide documentary proof of their right to foreclose on a Florida home.


For details, see our posts here:

The Non-Lawyer’s Guide to Foreclosure Fraud – Part 2: Things Get Lost – Lenders Lose Key Documents in Gleeful Days of Making More and More Money

The Power of Real Estate Law: Can Banks Legally Foreclose Upon Real Estate Loans They Don’t Own (Even Though They’ve Been Foreclosing On Homes Without Them)?

Florida Statute 702.015

In the summer of 2013,  in response to the huge Foreclosure Fraud Housing Crisis here, the Florida Legislature passed and the Florida Governor signed laws that changed how foreclosures were handled in Florida. It was a controversial piece of legislation that took two years to get passed, and not all of it was good for Florida homeowners from a Florida foreclosure defense lawyer’s perspective (more on that here), however one good thing did result from the new 2013 laws: Florida Statute 702.015.

In Florida Statute 702.015, Florida banks are held to a duty of providing the courts with proper, valid documentation in support of their foreclosure lawsuit. Specifically:

(2) A complaint that seeks to foreclose a mortgage or other lien on residential real property, including individual units of condominiums and cooperatives, designed principally for occupation by from one to four families which secures a promissory note must:
(a) Contain affirmative allegations expressly made by the plaintiff at the time the proceeding is commenced that the plaintiff is the holder of the original note secured by the mortgage; or
(b) Allege with specificity the factual basis by which the plaintiff is a person entitled to enforce the note under s. 673.3011.
(3) If a plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the person entitled to enforce the note, the complaint shall describe the authority of the plaintiff and identify, with specificity, the document that grants the plaintiff the authority to act on behalf of the person entitled to enforce the note. This subsection is intended to require initial disclosure of status and pertinent facts and not to modify law regarding standing or real parties in interest. The term “original note” or “original promissory note” means the signed or executed promissory note rather than a copy thereof. The term includes any renewal, replacement, consolidation, or amended and restated note or instrument given in renewal, replacement, or substitution for a previous promissory note. The term also includes a transferable record, as defined by the Uniform Electronic Transaction Act in s. 668.50(16).
(4) If the plaintiff is in possession of the original promissory note, the plaintiff must file under penalty of perjury a certification with the court, contemporaneously with the filing of the complaint for foreclosure, that the plaintiff is in possession of the original promissory note. The certification must set forth the location of the note, the name and title of the individual giving the certification, the name of the person who personally verified such possession, and the time and date on which the possession was verified. Correct copies of the note and all allonges to the note must be attached to the certification. The original note and the allonges must be filed with the court before the entry of any judgment of foreclosure or judgment on the note.

What if the Original Note is Lost? Florida Statute 702.015 and the Lost Note

Under the new law, there is some help for a bank that cannot find the original documentation. They can file a copy with a sworn affidavit that it’s the same as the original. This isn’t as easy as it sounds. From Florida Statute 702.015:

(5) If the plaintiff seeks to enforce a lost, destroyed, or stolen instrument, an affidavit executed under penalty of perjury must be attached to the complaint. The affidavit must:
(a) Detail a clear chain of all endorsements, transfers, or assignments of the promissory note that is the subject of the action.
(b) Set forth facts showing that the plaintiff is entitled to enforce a lost, destroyed, or stolen instrument pursuant to s. 673.3091. Adequate protection as required under s. 673.3091(2) shall be provided before the entry of final judgment.
(c) Include as exhibits to the affidavit such copies of the note and the allonges to the note, audit reports showing receipt of the original note, or other evidence of the acquisition, ownership, and possession of the note as may be available to the plaintiff.

Florida Banks Must Meet High Burden of Proof — Foreclosure Defense Lawyers Grade Their Papers

In sum, Florida banks seeking to foreclosure on your home or condo must prove by competent legal evidence (authenticated and admissible) their right to do so. If there is a lost note, this burden of proof can be very hard for the Florida bank to meet.

Here is where an experienced Florida foreclosure defense lawyer earns their keep. It takes someone with knowledge not only of real estate law, and foreclosure documentation, but also Florida evidence rules to make sure that the bank meets its evidentiary burden in a foreclosure case.

Your lawyer can and should pick through every facet of the bank’s evidence – or lack thereof. If there is a lost note, then the lawyer should look to see if the bank’s affidavit is admissible under Florida law? Is there a hearsay issue?  The lawyer should also determine:

  • When was the note lost?
  • Who has personal knowledge of the note?
  • Who has personal knowledge of the circumstances surrounding the note going missing?

Usually, the bank will send one person to act as its duly authorized representative to take the witness stand. If that one person cannot truthfully and accurately tell the court that they have personal knowledge of the life of that lost note, then that witness shouldn’t be enough for the lender to meet their burden.

The bottom line in simple language, is the bank’s witness(s) should be thoroughly cross examined on the stand by an experienced lawyer when there’s a lost note count.

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

Can I Sue The Florida Real Estate Agent For Falsely Advertising House Was On Town Sewer, Not Septic, Or For Septic Problems?

Posted By on March 25, 2014

Septic tanks are used as a part of a on-site home plumbing system because there’s no connection to a municipal or county septic system. A home septic tank system cannot be seen in a tour of a potential purchase; the system involves a big tank that is buried in the yard that holds the waste flushed into it from the home’s plumbing (sinks, toilets, tubs, etc.) and it is connected to a web, or network, of buried pipes that move the wastewater from the tank to the underground soil. The wastewater is treated in both the tank and the pipes and there is a lot of bacteria involved in the process.

Septic tank systems can work fine in Florida. However, problems with septic tanks as home plumbing systems can include odor as well as bad drainage in the yard and environmental hazards should the septic system drain into and impact Florida waterways.


Diagram of Septic System: Florida Dep’t of Health

Septic systems are built to specifications; if there have been additions to the home (additional bedrooms or bathrooms added to the original floorplan, for example) then the septic system may need expanding, as well.

Problems With Septic Systems

Septic systems also need proper maintenance and care. Neglected septic tanks are a problem waiting to happen. Other issues can arise with these systems, and a septic system inspection will reveal them to a potential buyer.

However, if a potential buyer is not made aware of the existence of a septic system and assumes that the home is part of the municipal or county sewer system, then that buyer will not know to get an inspection. Many buyers may not even know to ask.

(For example, only 8% of the homes in Broward County are serviced by septic systems; the other 92% of Broward residences are connected to community sewer systems. See, “You and Your Septic Tank,” a Broward County, Florida, publication.)

If septic system problems arise later, then what is the buyer’s recourse under Florida law?

Also, what if that buyer simply didn’t want to live in a home with a septic system? If the buyer was not told that the home was not on a shared sewer system but instead was serviced by an onsite septic system, then what can that unhappy buyer do?

Buyer Can Sue the Seller for Failure to Disclose

In Florida, the seller of the property (not the agent) is legally bound to disclose to the buyer all defects that impact the home’s fair market value of which the seller knows (if the seller isn’t aware of them, that’s a different story). This is usually accomplished through a “Property Disclosure Statement” which the real estate agent provides to the seller for the seller to fill out.

Almost always, these are completed on standardized forms provided by the Florida Association of Realtors®. The condition of the utilities provided to the residence, such as the septic system, should be part of the property disclosure prior to purchase and closing.

Additionally, Septic Tanks may need to be disclosed under local laws. For instance, county ordinances may require inspections of septic tanks on residential property by the county before the seller can close the sale with the buyer (Santa Rosa County Ordinance No. 2000-22, for example). In these situations, it is legally required for the seller to tell the buyer that the home has a septic system.

If the buyer was not informed of the septic system, and bought the home, then he or she may have a claim against the seller for failure to disclose. The existence and condition of the septic system is considered something that the seller of the property should disclose to the buyer as part of his or her duties in the real estate transaction.

Buyers of Homes With Septic Systems: Can They Sue the Real Estate Agent for False Advertising for Failure to Disclose the Septic System?

If the real estate agent undertook actions that were intentionally false, such as falsely advertising to the buyer that the home was on a municipal utility system and not on an on-site septic system, then depending upon the individual circumstances, the buyer may be able to seek damages against the real estate agent (and possibly the broker) under state consumer protection laws or under Florida common law tort actions such as fraud in the inducement. See, Hillcrest Pacific Corp. v. Yamamura, 727 So. 2d 1053 (Fla. 4th DCA 1999).

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

Fraud in Your Florida Home Purchase?: Water Leaks and Flooding In Your New Home

Posted By on March 18, 2014

What Happens When Buyers are Hurt by Misrepresentations by a Florida Real Estate Agent or a Florida Seller?

Florida real estate has had its ups and downs over the past few years, with the housing market still recovering from all of the Foreclosures, Short Sales, and Mortgage Fraud issues. Still, there’s always been and continues to be an interest in Florida homes and condos, especially in the South Florida area. It’s beautiful here, and people come from all over the world to buy a piece of our oceanfront paradise.

With a steady stream of buyers interested in Florida homes — single family dwellings, condos, townhomes, duplexes, etc. – there’s always the risk that a seller or real estate agent and/or broker will engage in the sale of property where they are less than above-board in representing the condition of the property (especially related to flooding and water leaks).

Silent and serious water leaks from hidden pipes – were they disclosed?

Water Leaks and Flooding Can Cause Serious, Permanent Damage to a Florida Home

Water is a big issue in Florida. That same sunny sky and ocean view can turn into a very real problem for homes here in Florida. We have severe storms, the risk of hurricanes and very humid conditions.  Roofs leak happen all of the time here because of our strong and steady heat as well as the ocean winds – these factors work together to limit the lifespan of most roofs.

Compensation and Relief Available to Buyers Under Florida Law Who Discover Water Leaks or Flooding

Florida real estate buyers who discover they have been duped by their seller or the real estate agent have legal recourse under Florida law. They can seek both to erase (”rescind”) the deal as well as ask for money damages from those who misrepresent or conceal the true condition of real property.  For example, in Syvrud v. Today Real Estate, Inc., a 2003 Florida case, the buyer sued the sellers, as well as both the listing real estate broker and the selling real estate broker, for rescission of the purchase contract and damages after the buyers discovered mildew damages, water leaks, and other structural defects in the property.

Rescission or damages

In the landmark Florida Supreme Court case of Johnson v. Davis, Davis signed an agreement to buy the Johnson’s home, put down a deposit to purchase the home, but before they were to close on the transaction, Mrs. Davis asked about some peeling plaster in the family room around a window frame, as well as stains on the ceilings of the family room and kitchen. Mr. Johnson, the seller, told her no worries — the problems were either minor and already fixed or simply stains from the wallpaper glue.

So, Davis moved in. Then it rained. It rained a lot. And water was soon “gushing” from around that window frame as well as from the family room ceiling, the kitchen stove, the glass doors, and the light fixtures. Scary, right?

Davis sued Johnson. It was a big fight, going from a trial in the local district court through the Florida circuit appeals court and up to the highest court in the state. There, the Florida Supreme Court ruled that while there was not enough evidence to support the Davis’s request to rescind the contract, Davis would get their money back (which would be more than enough to fix the problems):

The evidence adduced at trial shows that after the buyer and the seller signed the purchase and sales agreement and after receiving the $5,000 initial deposit payment the Johnsons affirmatively repeated to Davis that there were no problems with the roof. The Johnsons subsequently received the additional $26,000 deposit payment from  Davis. The record reflects that the statement made by the Johnsons was a false representation of material fact, made with knowledge of its falsity, upon which Davis relied to their detriment as evidenced by the $26,000 paid to the Johnsons.

.. where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer. This duty is equally applicable to all forms of real property, new and used.

In the case at bar, the evidence shows that the Johnsons knew of and failed to disclose that there had been problems with the roof of the house. Mr. Johnson admitted during his testimony that the Johnsons were aware of roof problems prior to entering into the contract of sale and receiving the $5,000 deposit payment. Thus, we agree with the district court and find that the Johnsons’ fraudulent concealment also entitles Davis to the return of the $5,000 deposit payment plus interest. We further find that Davis should be awarded costs and fees.

The lesson here, is to have a real estate lawyer involved in your real estate transaction, no matter what your real estate agent tells you. A good real estate lawyer will be more concerned with protecting his/her client’s interest, than others will be in collecting their commission.

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.