1031 EXCHANGE TO DEFER CAPITAL GAINS

1031 EXCHANGES TO DEFER CAPITAL GAIN TAXES ON PROPERTY SALES

Nobody likes to pay taxes upon the sale of real estate.  Specially not on investment or commercial properties.  However, by knowing the basic rules of how Internal Revenue Code 1031 works, property owners can defer the payment of capital gains taxes resulting in additional monies to invest in further property acquisition.

How it works:  In order to qualify under Section 1031, the property must first qualify as an “investment or commercial” property.  This means, it is not solely used as the property owner’s homestead.  Second, the sale of the property has to be treated as an exchange, meaning one property is being sold and a new one being purchased.  In order to qualify, the money earned at the time of the sale can not ever touch the seller’s hands. By using what is referred to as a “qualified intermediary” or a 1031 exchange company, the money is held by the company until you are ready to buy the new or “replacement property”.   The replacement property must also be similar in nature to the property being sold. That is, it must also be  held for investment as well.  But the rules are flexible.  For example, an office building, can be exchanged for vacant land.  Or an apartment building can be exchanged for a duplex or single family home, as long as it is going to be used for investment purposes.

Lastly, the seller must remain the same throughout the sale and purchase. For example, if “XYZ Corp.” sellers Property A, then “XYZ Corp” must also buy Property B.  But again, the rules are flexible and creativity can go a long way.  If  Holly Homeowner owns a commercial building in her own name, she can acquire the new building under the name of an LLC,  as long as she is the sole member of the LLC.  Or if she creates a trust and takes title under the name of the trust.  Holly Homeowner is still considered the same taxpayer under the 1031 Exchange allowing her to defer any capital gains and complete the 1031 exchange.

Some “investment” properties like vacation homes, used even seasonally by a homeowner, may not qualify under the rules.  However, mixed use properties, such as home offices or duplexes where the property owner lives in one unit but rents out the other, may qualify for the portion that is rented out.

DEFERRING THE TAX 

In order to avoid triggering any requirement to pay taxes, the replacement property that the investor is purchasing must be equal in value or greater in value then the property that is being sold. If it is not, then the transaction may result in partial tax having to be paid. 

TIME LIMITS

Section 1031 Exchanges also have strict time limits.  The seller has 45 days from the date the property is sold and closed to identify the replacement property.  As long as closing takes place within the 45 days, then the exchange qualifies for tax deferral.  If the closing does not take places within 45 days, the investor may still qualify as long as certain written requirements are met.  It is also helpful that the IRS allows for a seller who has not yet closed on the replacement property, to identify three properties and then must close within 180 days from the date of closing.

EXCELLENT INVESTMENT OPPORTUNITY

Tax-deferred 1031 Exchanges can be an excellent tool for investors to avoid paying taxes at the time of selling real estate property.  If used correctly, it can result in more money to invest in property acquisition.

The single most important tool however is working with a real estate attorney who is both knowledgeable in 1031 Exchanges and has the 1031 team in place to make the whole process run smoothly, without any guesswork.  As both a Real Estate Attorney and Accountant, I have been assisting investors for over 23 years with their 1031 Exchanges. We can work with you to prepare the contract for sale, identify the replacement property,  prepare all the required IRS forms, and meet all the deadlines to defer your capital gains.  Working with the right team can make all the difference between paying taxes or having more money to invest.

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FLORIDA HOMESTEAD EXEMPTION DEADLINE LOOMING

DECEMBER 31ST DEADLINE LOOMING FOR SIGNIFICANT TAX SAVINGS  

December 31, 2021 is the deadline for all deeds on property transfers to be recorded in the Miami-Dade County recorder’s office, in order to qualify for homestead exemption in 2022. This includes all title transfers from closing on a home, removing and adding names on property title via Quit Claim Deeds and Life Estate deeds.

Homestead Exemption applications commence on January 1 and run through March 1, 2022. In order to qualify you must prove that you are the property owner and show a deed that was recorded on or before December 31, 2021.

Most real estate attorneys who are title agents, such as myself, record electronically with the county, which means we no longer have to physically go down to the clerk’s office to record the deeds. Rather, we remit them electronically to the Clerk of Court in order to expedite their recording. This results in the deed often reflected as recorded the same day or within 24 hours.

Homestead exemptions can then provide not only significant savings in property taxes but also a cap on yearly increases of 3%, regardless of how much the property appreciates in value from one year to the next.

If you are planning to apply for the homestead exemption, ensure that you meet the following requirements:

  1. You are the property owner.
  2. The property you want to claim the exemption for must be your permanent residence.
  3. The property you want to claim should be the permanent residence of someone you can claim as a dependent on your taxes.
  4. You must have lived at the property on January 1 of the tax year in question. For instance, if you hope to claim the homestead exemption on your 2022 taxes, you must have lived at the property in question on January 1, 2022.
  5. You should not have rented the property for more than 30 days in a given calendar year. This is because renting the property for more than 30 days for two consecutive years or for more than six months is considered an abandonment of the Florida homestead exemption.

If you’re uncertain whether you meet these criteria, get in touch with a real estate attorney who can help you understand the details of Florida’s tax code to determine whether you qualify for the Homestead Exemption.

It is also smart practice to hire a real estate lawyer to represent you whether you are buying a home or wanting to transfer title via a Quit Claim or Lady Bird Deed.  By having an attorney prepare the necessary deeds, and thereafter record them, you ensure your interests are protected every step  of the way, and you are able to take advantage of the tax savings.

With offices in Coral Gables, we have been representing Buyers and Sellers in all their real estate needs, as well as preparing and recording Quit Claim Deeds and other deeds for property transfers for over 23 years.

With only a few more weeks left in 2021, you still have time to beat the clock. Consult with us for all your real estate, buying, selling and closing needs.

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PARTITION ACTION – WHEN TWO OWNERS CAN’T DECIDE WHAT TO DO WITH JOINTLY OWNED PROPERTY

CAN’T AGREE ON WHAT TO DO  WITH YOUR PROPERTY?

What happens when two co-owners of a property, who are not married, can not agree on what to do with the property?  One wants to keep it but the other wants to sell?  This scenario is quite common when parties either inherit real property after the death of a parent or, when two parties, often in a prior relationship, buy property together but then go their separate ways. It goes something like this:

Jack and Jill inherit property from their late Mother.  Jack, who lives in the property, says the property has sentimental value and does not want to sell it.  Jill lives in New York and she has no desire to keep the property nor rent it out. She wants to sell it immediately.  Jack pays the taxes and the insurance on the property and all the maintenance.  Jill wants nothing to do with it and forces Jack to make all the payments.

This issue is easily resolved in one of two ways.  Jack can either buy out Jill’s 50% share, and remain as the sole owner, or, if they can not agree on the price, or Jack does not have the money to buy Jill out, then they will need to file a Partition lawsuit.

In a partition lawsuit, the party who wants to sell, Jill in this scenario, sues Jack for the court to order or “force” the sale of the property.  The property would then be listed with a realtor and once a buyer is obtained, sold with Jack and Jill splitting the proceeds from the sale.

Questions arise however on whether Jack is entitled to be reimbursed for his share of all the expenses he made to the property.  And typically, the answer is no, since he reaped the benefits of living there and there was no agreement between them in writing.

It is very important when having any agreements regarding real estate, that the agreements be in writing. That way, issues that arise down the line, are easily resolved.  In this case, without any such agreement, the parties may spend countless hours in court and pay attorney’s fees to then have a Judge decide the fate of their late Mother’s property.

Conflicts regarding property are not always best litigated.  This could tie up the property in court for years.  By hiring a knowledgeable and experienced lawyer, who can order an appraisal and negotiate the terms between the parties, a partition action can be avoided all together.  Sometimes, however, it can not be avoided.  And therefore, hiring a real estate lawyer who handles real estate litigation and has the experience necessary to then handle the closing, is always your best bet.

Entering my 23rd year in practice, I have seen my share of family disputes over property. It is never pleasant to have family members suing one another, but if they can not agree, then this often leaves us with no choice. As both a real estate transaction lawyer and a litigator, I am able to provide peace of mind to my clients that I can handle both the litigation and the closing of the property, so that the same attorney familiar with all aspects of the case, can see it to the end.  And, as I always tell all my prospective clients, any time you are dealing with real estate, always hire a real estate lawyer.  What you pay is nominal for peace of mind!

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EJECTMENT ACTION IN FLORIDA

FLORIDA EJECTMENT ATTORNEY

An Ejectment action refers to a lawsuit brought by a property owner who has someone residing in their property, without permission, and the individual will not leave voluntarily. The property owner, who is rightfully entitled to possession, must then remove the person who will not leave voluntarily. An Ejectment is different from an eviction because there is no lease or other document which establishes the persons right to be there. Different from an eviction action, persons in an ejectment action do not pay rent, have not signed a lease, and may have had the right to be on the property at some point but said right was terminated by the property owner. This lawsuit is known as an Ejectment.

Florida law allows for a legal action know as an Ejectment to remove a non-rent paying person living in your home, who has not signed a lease and has no title or interest in the property. Often times, this involves a person whom you have allowed to live in your home and who later refuses to leave when asked. Most commonly, this involves either a boyfriend or girlfriend, a family member or a friend who has been invited to stay in your home, who has for some reason become an unwelcome guest and refuses to leave when asked.

Once the ejectment lawsuit is filed, the defendant(s) will have 20 days to file a answer. If there is no answer filed within the required time period, then the owner is entitled to obtain a default, a default final judgment and the court will issue an order for the Writ of Possession, the document used by the sheriff to remove the person. If the person does file an answer, a hearing will be required and the court will determine rightful ownership. .

Ejectment actions may be very emotional, if they deal with family members or other loved ones who were once there with permission but now the permission has been terminated. If you have a guest who is no longer wanted, you should contact our office at (305) 669-5280 to review your situation and assist in getting your unwanted guest(s) out of your property.

Chapter 66, Florida Statutes- Ejectment, is the statute by which an unwanted guest or guests may be removed from your property.

The following is the Florida Ejectment Statute Chapter 66 as of 2016 :

CHAPTER 66- EJECTMENT
66.011 Common law ejectment abolished.
66.021 Procedure.
66.031 Verdict and judgment.
66.041 Betterment, petition.
66.051 Betterment, answer.

66.061 Betterment, trial and verdict.
66.071 Betterment, judgment for plaintiff.
66.081 Betterment, judgment for defendant.
66.091 Betterment, payment by plaintiff.
66.101 Betterment, payment by defendant.
66.011 Common law ejectment abolished.—In ejectment it is not necessary to have any fictitious parties. Plaintiff may bring action directly against the party in possession or claiming adversely.
History.—s. 1, ch. 999, 1859; RS 1511; GS 1966; RGS 3234; CGL 5040; s. 21, ch. 67 254.
Note.—Former s. 70.01.
66.021 Procedure.—
(1) LANDLORD NOT A DEFENDANT.—When it appears before trial that a defendant in ejectment is in possession as a tenant and that his or her landlord is not a party, the landlord shall be made a party before further proceeding unless otherwise ordered by the court.
(2) DEFENSE MAY BE LIMITED.—A defendant in an action of ejectment may limit his or her defense to a part of the property mentioned in the complaint, describing such part with reasonable certainty.
(3) WRIT OF POSSESSION; EXECUTION TO BE JOINT OR SEVERAL.—When plaintiff recovers in ejectment, he or she may have one writ for possession, damages and costs or, if the plaintiff elects, have separate writs for possession and damages.
(4) CHAIN OF TITLE.—Plaintiff with his or her complaint and defendant with his or her answer shall serve a statement setting forth chronologically the chain of title on which he or she will rely at trial. If any part of the chain of title is recorded, the statement shall set forth the names of the grantors and the grantees and the book and page of the record thereof; if an unrecorded instrument is relied on, a copy shall be attached. The court may require the original to be submitted to the opposite party for inspection. If the party relies on a claim or right without color of title, the statement shall specify how and when the claim originated and the facts on which the claim is based. If defendant and plaintiff claim under a common source, the statement need not deraign title before the common source.
(5) TESTING SUFFICIENCY.—If either party wants to test the legal sufficiency of any instrument or court proceeding in the chain of title of the opposite party, the party shall do so before trial by motion setting up his or her objections with a copy of the instrument or court proceedings attached. The motion shall be disposed of before trial. If either party determines that he or she will be unable to maintain his or her claim by reason of the order, that party may so state in the record and final judgment shall be entered for the opposite party.
History.—s. 21, ch. 67 254; s. 348, ch. 95 147.
66.031 Verdict and judgment.—
(1) VERDICT.—A verdict for plaintiff shall state the quantity of the estate of plaintiff, and describe the land by metes and bounds, lot number or other certain description.
(2) JUDGMENT.—The judgment awarding possession shall state the quantity of the estate and give a description of the land recovered in like manner.
History.—ss. 1, 2, ch. 3244, 1881; RS 1515; GS 1970; RGS 3238; CGL 5046; s. 21, ch. 67 254.
Note.—Former s. 70.05.
66.041 Betterment, petition.—If a judgment of eviction is rendered against defendant, within 60 days thereafter, or if he or she has appealed, within 20 days after filing the mandate affirming the judgment, defendant may file in the court in which the judgment was rendered a petition setting forth that:
(1) Defendant had been in possession and that he or she or those under whom defendant validly derived had permanently improved the value of the property in controversy before commencement of the action in which judgment was rendered;
(2) Defendant or those under whom defendant validly derives held the property at the time of such improvement under an apparently good legal or equitable title derived from the English, Spanish, or United States Governments or this state; or under a legal or equitable title plain and connected on the records of a public office or public offices; or under purchase at a regular sale made by an executor, administrator, guardian or other person by order of court; and
(3) When defendant made the improvements or purchased the property improved, he or she believed the title which he or she held or purchased to the land thus improved to be a good and valid title. The petition shall demand that the value of the improvements be assessed and compensation awarded to defendant therefor.
History.—RS 1516; GS 1971; RGS 3239; CGL 5047; s. 2, ch. 29737, 1955; s. 21, ch. 67 254; s. 349, ch. 95 147.
Note.—Former s. 70.06.
66.051 Betterment, answer.—The plaintiff in the judgment of eviction may file written defenses to the petition within 20 days after service of the petition.
History.—RS 1517; GS 1972; RGS 3240; CGL 5048; s. 14, ch. 29737, 1955; s. 21, ch. 67 254.
Note.—Former s. 70.07.
66.061 Betterment, trial and verdict.—If an answer is filed, trial shall be on the issues made. If no answer is filed, trial shall be ex parte, but defendant is required to prove every allegation of the petition. If the jury (or if a jury is waived, the court) finds in favor of defendant, it shall assess:
(1) The value of the land at the time of the assessment, irrespective of the improvements put upon the land by defendant or those under whom he or she derives, and if any, the injury done to the land by defendant or those under whom he or she derives.
(2) The value of the permanent improvements at the time of the assessment.
(3) The injury, if any, done to the land by defendant or those under whom he or she derives.
(4) The value of the use of the land by defendant between the time of the judgment in ejectment and the time of the assessment or if defendant has been evicted from or has surrendered the premises, from the time of the judgment to the time of the surrender or eviction. The findings shall be specified separately on each of these matters.
History.—RS 1518; GS 1973; RGS 3241; CGL 5049; s. 2, ch. 29737, 1955; s. 21, ch. 67 254; s. 350, ch. 95 147.
Note.—Former s. 70.08.
66.071 Betterment, judgment for plaintiff.—On rendition of the verdict the clerk shall ascertain whether the balance of the last three assessments (that is, of the value of the improvements, the extent of the injury and the value of the use of land), is in favor of plaintiff or defendant and ascertain the amount of the balance; if the verdict is in favor of plaintiff, judgment shall be rendered against defendant for costs, whether the balance of the assessments is in favor of plaintiff or defendant; but if the balance of the assessments is in favor of plaintiff, he or she shall have a judgment for costs in addition to the judgment for the balance.
History.—RS 1519; GS 1974; RGS 3242; CGL 5050; s. 21, ch. 67 254; s. 351, ch. 95 147.
Note.—Former s. 70.09.
66.081 Betterment, judgment for defendant.—If the verdict is in favor of defendant and the balance of assessments is also in defendant’s favor, a judgment for costs shall be entered against plaintiff, and a further judgment that unless plaintiff pays or secures as hereinafter provided the amount of the balance of assessments against him or her within 20 days, defendant may pay or secure to plaintiff the value of the land as assessed.
History.—RS 1520; GS 1975; RGS 3243; CGL 5051; s. 21, ch. 67 254; s. 352, ch. 95 147.
Note.—Former s. 70.10.

66.091 Betterment, payment by plaintiff.—The plaintiff may pay the balance in cash or may give defendant a bond with surety to be approved by the clerk, conditioned to pay said balance in two equal annual installments, with interest at 6 percent per annum to defendant. If plaintiff shall pay the sum within 20 days, or if the payment of the bond is received, satisfaction of the judgment shall be entered and all rights conferred on defendant by the judgment terminate.
History.—RS 1521; GS 1976; RGS 3244; CGL 5052; s. 21, ch. 67 254.
Note.—Former s. 70.11.
66.101 Betterment, payment by defendant.—If plaintiff does not pay or secure the sum within 20 days, within 20 days thereafter defendant may pay to plaintiff the value of the land as assessed or give plaintiff a bond with surety, to be approved by the clerk, conditioned to pay plaintiff the value in two equal annual installments, with 6 percent interest; or if plaintiff fails to pay the bond given by him or her when it becomes due, for 20 days after the expiration of the time fixed in the bond for payment, defendant shall again have the privilege of paying to plaintiff in cash the value of the land assessed. On the payment of the sum to plaintiff at any of the times hereinbefore mentioned, title to the land shall vest in defendant and plaintiff or those holding under him or her shall give defendant a deed to the land, tenements, hereditaments, and appurtenances, and if defendant has been evicted from or has surrendered the property, it shall be restored to him or her by order of court on motion.
History.—RS 1522; GS 1977; RGS 3245; CGL 5053; s. 21, ch. 67 254; s. 353, ch. 95 147.
Note.—Former s. 70.12.

If you wish to file an action for Ejectment, Eviction or Unlawful Detainer, contact attorney Jacqueline A. Salcines, a Florida ejectment attorney, today to discuss your case or schedule a consultation. Contact us at (305) 669.5280 or by email at J.Salcines@Salcineslaw.com

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HOMESTEAD EXEMPTION DEADLINE MARCH 1

HOMESTEAD EXEMPTION DEADLINE LOOMING – MARCH 1

All applications to claim homestead exemption in Florida must be filed by no later than March 1, 2022.  In order to be eligible, you must have owned the property on or before January 1, 2022 and submit a timely application.

How to Apply:

You may complete the application online, by mail or in person by March 1st of the year you are applying. Check with your local property appraiser’s office for specific instructions on how to file in your county. http://floridarevenue.com/proprty/Pages/localofficials.aspx.

Are you eligible:

In order to qualify, you must meet the following requirements:

•  Have legal title to the property

• Reside in the property

• Be a U.S. Citizen or Permanent Resident (green card)

• Be a permanent resident of the State of Florida

What Information will you need to provide:

To apply for homestead exemption you will need to provide:

•Florida Driver’s License or Florida ID

•Social Security Number/US Passport or Green Card

•Original Warranty Deed

•Copy of either FPL or Water bill to show you reside in the property

What are the benefits of having a homestead exemption:

Many homeowners believe that the benefits of having a property declared “homestead” is just to reap the tax savings. Afterall, the homestead exemption will not only reduce the assessed value by $50,000.00, plus an additional $25,000.00 for qualified senior citizens, as well as cap the tax increases from year to year by 3%, however the greater benefit is in declaring the property safe from creditors and judgments.

Many Florida residents are not aware that many debtors move to Florida and claim homestead exemption in order to protect themselves from judgment creditors.  This is because Florida is one of the few states that do not permit creditors to take your homestead in order to satisfy a judgment or debt.  Article X, Section 4 of the Florida Constitution exempts homestead property from levy and execution by most judgment creditors. This means that a creditor cannot place a lien against or force the sale of your homestead to satisfy an obligation or monetary.  This Florida  protection is one of the broadest in the United States.    Florida’s homestead protection is such a potent asset protection tool because of its unlimited monetary protection.  Florida residents may invest millions of dollars in lavish estate homes and farms and still protect the full value of these luxurious residences.

Article X, Sec. 4(b) extends these exemptions to a surviving spouse and  heirs of a deceased homeowner.  Upon the death of the homeowner, the surviving spouse and related heirs may receive the homestead free and clear of any creditor’s claim.  To legally establish the protected homestead, a benefitted party (spouse or related heir) should file a petition to determine homestead in an estate administration proceeding.      

Certain types of co-ownership (such as tenancy in common and joint tenancy with rights of survivorship) of a homestead may jeopardize the homestead exemption when one of the joint owners does not reside on the property.  In such a case, a judgment against one co-owner not residing on the property may result in that co-owner’s interest being levied against, which would force a judicial sale of the homestead property.

In summary, Florida homestead laws and the protections given by them are significant and warrant consideration by homeowners and prospective homeowners.  Should you need assistance applying for homestead exemption or have questions and wish to discuss the homestead issues you are facing, do not hesitate to contact me. I have been helping Florida homeowners with their real estate needs for over 23 years and glad to set up a free consultation to help you with your questions and concerns.

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Selling Property with a Judgment or Lien against it

The South Florida real estate market continues to experience record breaking sales, with rates of single family homes climbing more than 40% compared to last year.  With low inventory and high demand among buyers, flocking in from all parts of the country, sellers are finding themselves in a bidding war.  However, anxious to sell quickly, they may experience delays when faced with code enforcement liens, judgments, or other encumbrances against their title that impedes a quick sale. 

Rather than stopping or cancelling the sale, many sellers are not aware that there exists a clause in the “As Is” Residential Contract for Sale and Purchase that permits sellers to invoke an “automatic” extension of time in order to clear or “cure” title issues such as these.  This language in the contract requires notifying the buyer side in order for the contract closing date to be extended.  It is important for sellers to know however,  that not all liens or judgments have to be paid in full, sometimes even paid at all!   Florida permits judgments to attach to title and be forced to be paid at the time of sale only if they meet certain requirements, including being certified by the court, containing certain language and be recorded.  If the statutory rules are not followed, the title company performing the closing can ignore the judgment. Similar rules apply for liens which can be ignored.

Liens Can Be Negotiated and Removed

Even if recorded correctly and collectible, liens and judgments can be negotiated. Even code enforcement liens.  Often million dollar liens can be mitigated to pennies on the dollar when we are able to show compliance to the City and efforts by the homeowner to correct the problem complained of.  Not all code enforcement and violations have to be cured either and can be negotiated with the buyer for the buyer to assume such matters. This often saves the seller thousands of dollars at the time of sale.   The most important step in the sale or purchase of any real estate in Florida is to hire a knowledgeable and experienced real estate attorney.  By having significant experience in both mitigating fines, liens and judgments, and being a full service title company, we make sure to protect our clients, whether seller or buyer, ensuring that all these issues, and anything else that comes up at closing, is addressed and our clients’ interests are protected.  After closing, it may prove impossible to correct.

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HOW TO CANCEL A SOLAR PANEL CONTRACT

Recent waves of Solar Panel contracts are taking over South Florida. In rural towns such as Lake Placid and Cape Coral as well as more populated cities, representatives for Solar Panel companies are approaching homeowners and misrepresenting not only the costs of the solar panels but also financing and interest rates. Some of our clients have even had their tax returns forged and fabricated in order to qualify for grants and government funds.

The first thing to look out for is whether the representative is making you sign documents on an Ipad without providing you with a copy of what you are signing. Solar Panel representatives statewide are misrepresenting terms in order to lock in the homeowner. Once you sign, you are on the hook for payment.

However, if the terms were misrepresented, or if there was fraud in the solar panel contract, then we can help cancel it and return you to the status quo.

Contact us today to review your Solar Panel Contract free of charge and advise what recourse, if any, you have. The first consultation is always free.

TRUST | COMMITMENT | RESULTS

HOW TO CANCEL A SOLAR PANEL CONTRACT
Jacqueline Salcines, Esq.
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§57.105 – ATTORNEY’S FEES CLAIM FAILS: 21 DAY SAFE HARBOR LETTER DEFICIENT

§57.105 ATTORNEY’S FEES CLAIM FAILS:  21 DAY SAFE HARBOR LETTER DEFICIENT SAYS FLORIDA

As an attorney, we are zealous advocates of our clients and their rights. We are trained in law school to pursue justice at all costs. However, sometimes the facts may not support our actions filed, or if they do, the other side feels that our suit or pleading filed on behalf of our client, is frivolous and being filed fraudulently on the Court. Then you get slapped with a §57.105 Motion for Sanctions, both against you and your client. Now what? Don’t fear! There is so much law on the §57.105 motions and how to overcome them. The answer is to hire the right lawyer to help you that knows what they are doing and how to fight §57.105 motions.

For starters, there is the 21 Day “Safe Harbor Letter“

The 21 Day Safe Harbor letter is not only mandatory before the filing of a §57.105 motion for sanctions, it can determine whether the motion stands up in Court or gets dismissed.

The 4th DCA, on June 7, 2017, overturned a Broward County Judge’s ruling which awarded attorney’s fees under a Motion for Sanction under Florida Statutes §57.105 because the manner in which the notice of the sanctions was sent, was improper.  Ask your Florida lawyer about unsubstantiated and groundless fake lawsuits and suits brought without merit.  Why? Because under Florida law, you may be able to get your attorney’s fees paid for by the other side. 

  • Before you start calling your Florida lawyer however, it is important to understand the nuances of Florida Statutes §57.105 and the motion for sanctions once served upon you, as either a party or counsel, since it is only applicable if the other side is making a claim or a defense which is NOT supported by the facts or the law.
  • If you have received a §57.105 Safe Harbor letter and accompanying unfiled Motion for Sanctions, understand that strict compliance with that law is mandatory. Otherwise, it won’t survive dismissal, and fees awarded to the other side.
  • Proper Notice is crucial. Not only for the 21 Safe Day Harbor letter but also for the requirements when the 21 Day Safe Harbor letter is sent. It must comply with the Rules of Procedure and Florida Rules of Judicial Administration 2.516.
  • The movant must wait the 21 days to file the Motion for Sanctions
  • And the motion for sanctions under 57.105, must also strictly comply with the law.
  • In the Broward case, the Safe Harbor 21 day letter was missing four important words and because of that it did not survive.

If you have received a §57.105 Motion for Sanctions, call us.

At the Law Offices of Jacqueline Salcines, PA we have been successful not only in getting these Motions denied, but attorney’s fees completely denied both against the attorney and the party. We have been assisting clients with their litigation needs for over 21 years.

TRUST | COMMITMENT | RESULTS

§57.105 – ATTORNEY’S FEES CLAIM FAILS: 21 DAY SAFE HARBOR LETTER DEFICIENT
Jacqueline A. Salcines, Esq.
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FLORIDA HOMESTEAD TAX EXEMPTION

FLORIDA REAL ESTATE LAWYER

As a result of historically low mortgage interest rates and retiring baby boomers, as well as Covid 19 effects on the work force, Florida is welcoming many new purchasers of residential real estate. Many of these buyers are unfamiliar with the complexities of Florida’s residency rules and the obligations imposed on property owners when claiming the benefits of Florida’s Constitutional homestead exemption.

While some buyers undoubtedly have heard that Florida affords its homeowners a homestead tax exemption of 450,000, few understand the mechanics of filing for the exemption or even how to qualify. Even fewer know that acts committed unintentionally, if wrongfully filed, may land them in some hot water with penalties and lost exemptions.

Newcomers deserve sound counsel about Florida’s residency requirements and a stern warning that penalties for violations can result in the assessment of extremely hard penalties.

The Florida Homestead Exemption is actually a product of Floridian’s struggles to pay real estate taxes during the Great Depression. Dwight Rogers of Fort Lauderdale proposed the legislation that resulted in Florida voters overwhelmingly approving the tax exemption.

In 1994 the Save Our Homes amendment was passed and established a 3% cap on the annual increase in assessed taxable values on homestead property.

Today, under Art. VII, Sec. 6 of the Florida Constitution, the homestead exemption law acts to protect homeowners who live in their property not only a large exemption over assessed value but also the Save Your Home Cap protecting against rising amounts from year to year.

Perhaps one of the greatest protections afforded by the Homestead Exemption law is the homestead protection against creditors claims. In cases where the homeowner is either a resident or citizen and resides in the home as their primary residence, they are immune from judgment creditors, seizing their home in order to satisfy a judgment.

To obtain a tax exemption in Florida, one must permanently reside on the property and be a resident as of January 1 of the year for which the exemption is sought.

Applications for Homestead Exemption run from January 1 to March 1, although late filing may be allowed with the showing of good cause.

Once Homestead is determined and the exemption granted, it renews automatically from year to year. No further action is necessary.

If you need assistance filing for Homestead Exemption contact us.

As the Law Offices of Jacqueline Salcines, PA we have been assisting homeowners with their real estate and title needs for over 31 years.

TRUST | COMMITMENT | RESULTS

FLORIDA HOMESTEAD TAX EXEMPTION
Attorney at Law
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