Last Update: 10/24/19
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 (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 force the completion of 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, in foreclosure or bank-owned? REO properties, foreclosures 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 ensure 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 the 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 these specific type of 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) especially when a problem arises?
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 and some may not even know what their obligations are related to disclosing the condition of the property; 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 (including, providing a seller disclosure statement and answering the questions on that document honestly and to the best of their knowledge) 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 effect 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 disclosure 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?
What Should You Do?
If you are buying or selling a home in Florida, a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights, including those related to disclosures, inspections and title insurance. 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.
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