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Real Estate Transactions: How to Protect Your Rights When Buying and Selling Property

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Buying or selling real property is one of the largest investments that most homeowners and business owners make. Florida has one of the hottest real estate markets in the country. According to the latest data from Zillow, the median home price in the state is now $377,706, and the median home that is for sale goes pending in just 31 days. Commercial property is even more expensive. 

Whether you are buying property or selling property, it is imperative that you take the proper steps to protect your rights and your interests. At Jacqueline A. Salcines, PA, our team works hand-in-hand with buyers and sellers through real estate transactions. Here, our Coral Gables real estate law attorney highlights key things to know about buying and selling property in Florida.  

Do the Research: Make Sure Clarify Your Goals and Know the Market 

As there is a lot on the line with a residential or commercial real estate transaction, it is crucial that you do your research—and this requires having a clear understanding of your goals. Familiarize yourself with the local real estate market by reviewing recent sales, comparable properties, and market trends. Doing so will put you in the best possible position to make informed decisions and set your expectations. Research is important for both buyers and sellers. Key considerations include location, property type, budget, and potential return on investment. By clarifying your goals and having a solid grasp of the market, you can best navigate real estate transactions. 

Seek Professional Guidance and Support 

You do not have to figure everything out on your own. Both residential real estate transactions and commercial real estate transactions can be complex. Seeking professional guidance and support provides much-needed protection. A South Florida real estate lawyer who has a deep knowledge of the law and a comprehensive understanding of the local market can make a big difference. An attorney’s expertise can guide you through the negotiation process, provide insights into market conditions, and ensure compliance with legal requirements. 

Know the Importance of the Contract (Carefully Review the Language)

With real estate transactions, the contract is everything. Do not go by verbal representations. Whether you are a buyer or a seller, you need to review (and understand) the contract language. If any sort of legal dispute or other issue arises, the contract will be used to resolve the matter. A real estate purchase agreement should outline the terms and conditions agreed upon by both parties. 

To safeguard your rights, it is imperative to carefully review the language and ensure you understand each provision. Pay particular attention to clauses related to contingencies, disclosures, deadlines, and penalties. Consult with a real estate attorney if necessary to clarify any ambiguous terms and negotiate changes if needed. A well-drafted and thoroughly reviewed contract will not only reduce the risk of problems, but it will also help to protect your rights if any arise. 

Three Key Tips for Homebuyers in Florida

With picturesque beaches and great weather, South Florida attracts homebuyers from across the country. Whether you are a local or you are moving to the state, you must act to protect your rights and interests when buying property. Here are three tips for homebuyers in Florida.

  • Know How to Effectively Use Contingency Periods: Contingency periods are an important part of any real estate transaction for buyers. During this time, the buyer can conduct inspections, appraisals, and other due diligence activities. In Florida, contingency periods can vary in length. You should refer to any agreement to clarify the deadline. 
  • Make Sure You Have a Full Understanding of the Costs: Cost matters. Beyond the purchase prices, costs include closing, property taxes, and insurance. It is essential to have a full understanding of these costs before making a final offer on a home in South Florida. You should also factor in the cost of any repairs or renovations that may be necessary.
  • Do Your Due Diligence (Inspection): You need to know what you are buying as it is represented. It is essential to have a thorough inspection of the property before closing. You should also research the neighborhood and surrounding areas to ensure that the property is in a safe and desirable location.

Three Key Tips for Homesellers in Florida

If you are planning to sell your home in Florida, there are several factors that you should keep in mind to ensure that you get the best possible price for your property and to avoid any potential legal headaches down the road. Here are three key tips for sellers in Florida. 

  • Know the Value of Your Property: A critical factor in selling your home is to know its value. Conduct a thorough analysis of the current market conditions, including things like recent sales of similar properties in your area. Knowledge is power. 
  • Be Sure to Meet All Disclosure Requirements: In Florida, sellers are required to disclose any known defects or issues with the property to potential buyers. Failure to do so could be a very serious problem, you could even be held legally liable for the damages sustained by a buyer. Compliance with residential disclosure requirements is a must.
  • Ensure the Purchase Contract is Pristine: The purchase contract is the core legal document that specifies the terms of the sale. Be sure that the contract is clear, concise, and free of any errors. A seemingly small mistake could cost a home seller thousands of dollars in the long run. You should consult with a Florida real estate attorney to ensure that the contract is legally sound and in your best interests. 

Speak to Our Florida Real Estate Transactions Lawyer Today

At Jacqueline A. Salcines, PA, our Florida real estate transactions attorney provides the solutions-first legal guidance and support that you can trust. We protect the rights of buyers and sellers in real estate transactions. Call us now at 305-669-5280 or contact us online for a fully private case review. With a legal office in Coral Gables, our firm serves real estate buyers and real estate sellers in Miami-Dade County and throughout all of Southeastern Florida. 

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Five Things You Need to Know About the Real Estate Closing Process

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Real estate is one of the most important industries in the United States. The Congressional Research Service (CRS) estimates that this sector of the economy makes up nearly 12% of our nation’s gross domestic product (GDP). For many people, a real estate purchase (or real estate sale) is one of the most consequential transactions that they will ever make. 

Whether you are buying or selling residential or commercial property, it is crucial that you have an understanding of the real estate closing process. At Jacqueline A. Salcines, PA, we represent buyers, sellers, lenders, borrowers, developers, and brokers. Here, our Coral Gables real estate attorney highlights five key things that you need to know about the real estate closing process in Florida. 

  1. A Real Estate Closing is the Final Step in the Buying and Selling Process

To start, it is important to understand that a real estate closing is the final step in a transaction for the buying/selling of real property. The Legal Information Institute defines a real estate closing as the culmination of a deal and the moment “when the parties exchange deeds for payment and final signatures.” In other words, a real estate closing is the formal part of the process whereby the ownership of the property is transferred from the seller to the buyer. Most notably, a real estate closing is when the buyer pays the purchase price, and the seller officially transfers the property’s ownership to the buyer. Until a deal is “closed,” it is not done. Terms can change—and the transaction could potentially still be called off. It is important to get the closing right. 

  1. Funds are Protected Within an Escrow Account

Once an initial agreement to purchase real estate is reached, the buyer will generally put down some money as a deposit. You may hear these funds referred to simply as earnest deposit money. These funds are used to “hold” the property while the deal is going through the closing process. 

Where does this money go? It is typically held in escrow. An escrow account is set up by a neutral third party, known as an escrow agent, to hold the funds for the purchase of the property until the closing. The escrow agent acts as a neutral intermediary and ensures that the funds are disbursed correctly at the time of closing.

As explained by the Consumer Financial Protection Bureau (CFPB), escrow is legally required for certain types of mortgage transactions. Though even when not required, escrow accounts are still used in virtually all residential and commercial real estate transactions. If you have any questions about escrow, an experienced Florida real estate closing lawyer can help. 

  1. A Title Search and Title Insurance are Key Parts of a Real Estate Closing for Buyers

How do you know who owns real estate? How do you know that the property in question is free and clear of any potential claims? This is where a title search comes into play. For homebuyers and commercial property buyers in Florida, a title search is a critically important aspect of the closing process. Among other things, a title search involves researching the history of the property to ensure that the seller has the legal right to sell the property. All buyers should consult with a Florida real estate closing lawyer who has experience with a title search. Title insurance is also important. Simply put, title insurance is a form of coverage that protects the buyer from any potential claims or disputes that may arise from the title of the property.

  1. The Timeline of the Real Estate Closing Process Varies Based on Several Factors 

One of the most common questions that people have about real estate transactions in Florida is: How long does the real estate closing process typically take? The most accurate answer is that it depends on a wide range of different factors, including the complexity of the transaction, the type of property, and the availability of all parties involved. For residential real estate in South Florida, a general timeline for a real estate closing is 30 to 60 days. In other words, it typically takes somewhere between one month and two months from the date an agreement is reached until a residential real estate transaction is finalized (closed). Commercial real estate closings typically, but not always, take a bit longer to close. 

  1. Get it Right: Residential/Commercial Transactions Can Fall Apart Until the Last Minute

One of the most important things to remember about real estate closings is that the transaction is not done until the closing is complete. Even when an agreement has been reached, and all parties are on good terms, many different issues can still arise. Indeed, it is not uncommon for things to go wrong in a real estate transaction between the agreement and the actual closing. 

It is essential for buyers, sellers, and other implicated parties to review all documents and be aware of any contingencies that could potentially disrupt the closing process. Even in the last stages of the process, it is important to be vigilant to ensure that the transaction goes smoothly. You do not have to go it alone. A Florida real estate lawyer with experience handling title issues and real estate closings can help you navigate the process and ensure that your rights and your interests are protected each and every step of the way. 

Contact Our Coral Gables, FL, Real Estate Closing Lawyer Today

At Jacqueline A. Salcines, PA, our Florida real estate lawyers are committed to representing buyers, sellers, lenders, borrowers, developers, and brokers with a comprehensive range of real estate and title needs. If you have any questions about real estate closings, we are here to help. Call us at 305-669-5280 or send us a direct message for a confidential consultation. From our Coral Gables law office, we are well-positioned to handle real estate closings throughout Southeast Florida. 

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Five Real Estate Transaction Frequently Asked Questions (FAQs)

South Florida has one of the most dynamic real estate markets in the entire country. At Jacqueline A. Salcines, PA, we work closely with buyers, sellers, and lenders in complex real estate transactions. With experience in residential and commercial property transactions, our firm is committed to protecting the best interests of our clients and helping them achieve their goals. We want to make sure that our clients have the knowledge they need. Here,  our Coral Gables real estate law attorney answers five of the most frequently asked questions (FAQs) about real estate transactions in Florida. 

  1. What is an Earnest Money Deposit and How Does it Work When Buying a Home?

The personal finance company NerdWallet explains that earnest money is a “good-faith deposit you make on a home to show the seller you’re serious about buying.” In virtually every residential real estate transaction that is completed in Florida, the buyer will have been required to put down some form of earnest deposit money. In effect, earnest money “holds” the property for the prospective buyer while the purchase contract is being finalized. The amount of earnest deposit money required is generally negotiated by the parties. Most often, it is between one percent and three percent of the total sale price. 

When the transaction is finalized, the earnest money will simply be applied to the sale as part of the down payment. What happens if the home purchase agreement falls through? It will depend on exactly what happened and why. The terms of the contract matter. There are many circumstances in which buyers can get their earnest money back—such as when they have a contingency for a home inspection, and they do not like the results of the inspection. However, there are also some circumstances in which a seller may be justified in retaining the earnest money. 

  1. What Steps Should a Buyer Take Before Purchasing Real Estate in Florida?

Are you considering purchasing residential or commercial real estate in Miami-Dade County or elsewhere in South Florida? There are several important steps that you should take to protect your rights and interests. Key things that prospective real estate buyers should do include: 

  • Carefully determine your budget and financing options so that you are in the right position to find the best available property; 
  • Comprehensively research the area to ensure that you have a full understanding of what is available; 
  • Get pre-approved for a mortgage (or ensure other financing is in place), get the property inspected by a reliable professional, and initiate a title search; and 
  • Consult with an experienced real estate attorney who can help negotiate and review the purchase contract to ensure you are fully protected. 
  1. What is a Title Search in a Real Estate Transaction and Why is it Important?

A title search is an important part of a major residential or commercial real estate transaction in Florida. As simply defined by Investopedia, a title search is “an examination of public records to determine and confirm a property’s legal ownership.” Put another way, a title search helps to ensure that the property being purchased is actually owned by the seller and that there are no outstanding liens or claims on the property. Most often, a title search is a process that involves examining a wide array of public records to determine the ownership history of the property, as well as any encumbrances, such as mortgages, liens, or easements, that may be attached to it.

The importance of a comprehensive title search cannot be overstated. From the perspective of a residential homebuyer or commercial property buyer, the purpose of a title search is to provide peace of mind that they are purchasing a property that is free and clear of any legal issues that could potentially arise in the future. As a title search is often a prerequisite for obtaining title insurance, it also helps to protect the buyer from unexpected financial obligations or disputes over ownership. 

  1. What Makes Commercial Real Estate Transactions Different?

While residential real estate transactions are certainly complicated, commercial real estate transactions in Florida tend to be even more complex. Some notable reasons why commercial real estate transactions are different than residential real estate transactions include the following: 

  • The unique type of property involved; 
  • Zoning and other land use restrictions or requirements; 
  • Issues related to the financing of commercial property; 
  • Assignments of leases and other commercial leasing matters; and
  • The size, scope, and complexity of the transaction. 

Overall, commercial real estate transactions are different from residential real estate transactions due to the type of property involved, the purpose of the property, the size and complexity of the transaction, and the financing arrangements. 

  1. How Can a Florida Real Estate Attorney Help With the Purchase or Sell of Property?

Whether you are buying or selling residential property or commercial property, it is crucial that you have the right professional representation. Real estate is a major transaction. A South Florida real estate attorney can provide a range of services to help with the purchase or sale of property. This includes reviewing and negotiating the terms of a real estate contract, conducting a title search to determine the ownership history of the property and identify any liens or encumbrances, handling the closing process, and providing legal representation in the event of a dispute or legal issue related to the purchase or sale. You do not have to navigate such an important transaction alone. An experienced Florida real estate lawyer will ensure that your rights and interests are properly protected through every step of the process. 

Contact Our Coral Gables, FL, Real Estate Transaction Attorney Today

At Jacqueline A. Salcines, PA, we are dedicated to assisting buyers and sellers with the purchase and sale of real property, including residential and commercial property transactions. Give us a call at 305-669-5280 or contact us online to arrange a fully confidential, no-obligation consultation. From our Coral Gables office, we represent buyers and sellers in real estate transactions throughout South Florida, including in Miami-Dade County, Broward County, and Palm Beach County. 

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Real Estate Lawyer Near Me

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We service all your real estate needs in the entire State of Florida. We are your “real estate lawyer near me”.

As a buyer or seller of real estate in Florida, it is never prudent to rely on a real estate agent or broker to handle your real estate transaction. Realtors are excellent at what they do, which is bringing buyers and sellers together. However, when it comes to giving advice regarding a Real Estate Contract, the did not attend law school and are not experts in contract law. It always makes sense to hire a real estate lawyer to protect you every step of the way. What you pay is nominal for peace of mind.

What can you expect to pay a real estate lawyer? Depends on the transaction. Fees generally start at $450.00 and depending on the scope of work, whether you need an As Is Contract for Sale and Purchase prepared, title work, lien search, etc.

Always hire a real estate lawyer near me to protect your interest.

LAW OFFICES OF JACQUELINE SALCINES

706 S. Dixie Highway Second Floor Coral Gables FL 33146

J.Salcines@salcineslaw.com

(305) 669 5280

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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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HOA LIENS AND FORECLOSURE – WHAT RIGHTS DO ASSOCIATIONS HAVE AND WHAT YOU NEED TO KNOW.

REAL ESTATE LAWYERS

THE RIGHT TO RECORD LIEN AND TO FORECLOSE ON UNPAID ASSOCIATION LIENS, IS PERHAPS THE MOST POWERFUL TOOL A HOMEOWNERS OR CONDOMINIUM ASSOCIATON HAS TO ENFORCE ITS ASSESSMENT OBLIGATIONS.

Florida Statutes permit associations to recover unpaid assessments and expenses by requiring strict compliance with statutory procedures and notice to homeowners. While Florida Statutes permit associations to file liens against homeowners for unpaid association maintenance and assessments, the associations are limited in that liens can not be filed if the dues are less than a certain amount, and can not be filed, unless the Association first sends the correct notice to the homeowner.

Association liens, filed by either Condominium Associations or Homeowners Associations can be foreclosed upon, which means that a homeowner can lose their property to the Association or third party bidder, if the amounts due are not satisfied. By law, the association can not collect more than the amounts permitted by statute and penalties are also capped.

OBLIGATION TO PAY HOMEOWNERS ASSOCIATION OR CONDOMINIUM ASSOCIATION DUES

When homeowners purchase a new home that is governed by an association, it is almost like purchasing into a club. The Association makes all the rules and the homeowner is required to follow the rules, pay the amounts due, and abide by all the laws governing the association. One of those rules is paying the maintenance and assessments, if any, timely. When associations send statements, the homeowners has a certain amount of time to pay them or incur a late fee. If not paid timely, then the association will send out a letter advising of the amounts past due and demanding payment. If the notice is ignored, then the association has the right to file a claim of lien, and take your property.

RECORDING OF THE LIEN

Any lien recorded by the Association attaches to the property as soon as the assessment or maintenance becomes delinquent. However, because there is no way for third parties to know about it, the association records the lien. Once the lien is recorded, notice is considered proper upon the homeowner.

ASSOCIATION LIEN REQUIREMENTS

When HOA fees are due, the Association although not obligated, may provide a statement to the property owner, setting forth the amounts due. If the owner fails to pay, the association sends notice that it intends to lien. The content and timing of the notice are set forth by statute and very important as to ability to record the lien, or if it stands up in court.

State laws vary with regard to the content of the lien. If the exact language required by Florida Statute is not included in there, it can be set aside, and the homeowner can recuperate attorney’s fees and costs for the illegal lien.

In Florida, HOA fees are limited to 25.00 or 5% of the past due amount and interest must not pass 18%.

Further, the association must file suit within 90 days or the lien becomes void.

EFFECT OF THE LIEN ON THE PROPERTY

Even if the homeowner does not go into foreclosure, the Homeowners Association or Condominium Association lien will act t encumber the property and will prohibit the prohibit the property sale until it is satisfied. If a mortgage default occurs and the bank forecloses, the proceeds are fist applied to the HOA claim of money and then to the mortgage debt, if recorded first.

FORECLOSURE DEFENSE

If a foreclosure is filed against you, the homeowner has the right to assert a defense and fight the foreclosure. There are numerous grounds, as detailed above, to fight a Condominium Association or Homeowners Association foreclosure. However, if the amounts are actually owed and the association has followed all the correct procedure, the homeowner must then negotiate the amounts due in order to avoid having the property sold at auction.

REMOVAL OF THE ASSOCIATION LIEN

At the Law Offices of Jacqueline A. Salcines, PA, we have been helping homeowners with their condominium and homeowners association dues and foreclosures for over 21 years. Attorney Jacqueline Salcines, an accountant and attorney, is well versed in condominium law and knows the ins and outs of the Florida Statutes and how to protect homeowners against the associations..

If you are facing foreclosure or a claim of lien has been filed against you, consult with us today. We are here to help you navigate the association’s rights, make sure they are acting legally and help you save your property from foreclosure.

TRUST | COMMITMENT | RESULTS

HOA LIENS AND FORECLOSURE – WHAT RIGHTS DO ASSOCIATIONS HAVE AND WHAT YOU NEED TO KNOW.
Jacqueline A. Salcines, Esq. 706 S. Dixie Highway Second Floor Coral Gables, FL 33146
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PARTITION SUITS BETWEEN FAMILY

SOUTH FLORIDA REAL ESTATE LAWYERS

It is never a pleasant notion to have to file a lawsuit against a family member or sibling. When property of a deceased is inherited via a Last Will and Testament, however, often the siblings have different ideas with regard to the property. Some may want to rent it. Others may want to sell it and not keep paying for maintenance and taxes. When there is a dispute between heirs or co-title holders, that can not be resolved, a Partition lawsuit has to be filed.

In a Partition lawsuit, the Court or Judge is the one that orders the property sold and divided down the middle. However, it is not necessary to get to that point where siblings or heirs are fighting against each other. There are many ways to settle these types of matters without a lawsuit. However, if the parties can not settle, then a lawsuit is inevitable.

At Jacqueline A. Salcines, PA, we are experienced and knowledgeable real estate attorneys that can help you negotiate with the other party or if unable to reach a middle ground, to file a partition lawsuit. With over 21 years experience filing Partition suits and negotiating property laws, we come to the table with a team of expert negotiators and litigators, to make the transition as smooth as possible.

The first consultation is always free and can provide you with invaluable advice regarding your right. Consult today.

TRUST | COMMITMENT | RESULTS

PARTITION SUITS BETWEEN FAMILY
Attorney at Law

LAW OFFICES OF JACQUELINE A. SALCINES, PA

706 S. DIXIE HIGHWAY

SECOND FLOOR

CORAL GABLES, FL 33146

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EJECTMENT

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SOUTH FLORIDA REAL ESTATE LAWYER

Florida has different types of actions in court that can be filed when someone is in your house and refuses to leave.

Eviction – When a property owner has someone residing in their property that is there lawfully, with permission either under a written or oral lease, and has either stopped paying rent, violated a term of the contract or their contract has expired, removing them is by Eviction.

Unlawful Detainer – When a property owner has someone residing in their property that is not there with permission and has never had permission.

Ejectment – When a property owner has someone living on the  property to which they have legal right and title and the individual will not leave voluntarily, the legal action is called an Ejectment. 

In all these cases, the owner is faced with making a decision as to how to remove the person or persons who will not leave voluntarily.

Florida law allows for a legal action know as an Ejectment to remove a non-paying person who is living in your home, but has no has no title or interest in the property, to be removed. Sometimes, this will be a relative, former girlfriend or boyfriend, or someone you allowed to stay short term but has outlived their welcome.

 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.

The filing of an ejectment lawsuit, unlike an eviction, does not require a three day notice but rather a 20-day summons.  Once  filed, the defendant(s) has/have 20 days to file a answer just as in most normal lawsuits. If no answer is filed within the required time period, a motion for default is filed and once entered by the court, a final judgment may be issued that orders the person to leave the home. If they do not leave voluntarily, a writ of possession will be issued to the sheriff to remove them.  If the person or persons do file an answer, a hearing will be required.  After the hearing, once the court has determined that there are no defenses as to why they should be allowed to remain in the property, the court will issue a final judgment and writ of possession for the person to leave or be removed.  If they do not leave voluntarily, the sheriff will remove them for you.

Recognizing that in many cases the person or persons who reside in your property and refuse to leave may have at one time been an invited guest, an ejectment proceeding can be very emotional and all consuming.  If you need to remove someone that is no longer wanted at your house, please contact our offices at 305 669 5280 to review your situation and assist in getting your unwanted guest(s) out of your property thereby returning you to the safety and peacefulness of your home.

Below is the full reading of the Statute on Ejectment.

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

The 2016 version of FS §66 is shown below in its entirety.

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.

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The Coronavirus and Force Majeure Clauses in Contracts

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The Coronavirus and Force Majeure Clauses in Contracts – SALCINESLAW

With the Coronavirus (COVID-19) taking over the country and businesses, businesses are now seeking to determine whether they are obligated to perform under their contracts, or whether they can invoke a force majeure clause to excuse performance temporarily or even permanently.

Force Majeure Clauses Generally

Not all contracts contain force majeure clauses and even if they dont, there are still protections afforded by law. The force majeure clause is a contractual provision which excuses one or both parties’ performance obligations when circumstances arise which are beyond the parties’ control and make performance of the contract impractical or impossible.[1]

Force majeure events typically enumerated in contracts include:

  1. acts of God, such as severe acts of nature or weather events including floods, fires, earthquakes, hurricanes, or explosions;
  2. war, acts of terrorism, and epidemics;
  3. acts of governmental authorities such as expropriation, condemnation, and changes in laws and regulations;
  4. strikes and labor disputes; and
  5. certain accidents.[2] Economic hardship typically is not enough to qualify as a force majeure event on its own.[3]

Determining whether a force majeure clause can be invoked depends on the specific language of a contract. Generally, force majeure clauses are confined to situations of the kind or nature which limit damages in a case where the reasonable expectation of the parties and the performance of the contract have been frustrated by circumstances beyond the control of the parties.

State Specific Requirements for Force Majeure Clauses: Florida

The CDC defines an epidemic as an outbreak of disease that infects communities in one or more areas, and a pandemic is an epidemic which spreads across the globe. If a contract at issue lists epidemics or pandemics as a force majeure event, the claiming party could argue that the coronavirus qualifies in light of the fact that is has been officially declared a pandemic by World Health Organization.

If a force majeure clause does not list epidemic or pandemic as a triggering event, it is possible that the coronavirus could be covered as an act of governmental authority in some areas, given that many governments, including the United States government, have instituted lockdowns to prevent the spread of the coronavirus.

If a listed force majeure event occurs, however, there is still further analysis required to determine whether invocation will be successful.

Under Florida law, a party seeking to invoke a force majeure clause must show that the force majeure event was unforeseeable, and that the force majeure event occurred outside the party’s control. This means that the claiming party must show that the event could not have been prevented or overcome, and there additionally cannot be any fault or negligence on the part of the claiming party.

Some contracts additionally require that the claiming party give the other contractual parties notice before invoking a force majeure clause. If the claiming party does not give proper notice as set forth in the contract, it could preclude successful invocation of a force majeure clause.

Businesses seeking to invoke the force majeure clause of their contracts likely have a strong argument that the coronavirus outbreak is an unforeseen event, unless the parties entered into the contract after the outbreak of coronavirus. Whether businesses have also attempted to perform their contractual duties despite the coronavirus outbreak, and whether that is even required under a particular contract are questions that must be assessed on a case-by-case basis.

Other Options: Impossibility/Impracticability and Frustration of Purpose

If a party is unable to successfully utilize a force majeure clause to excuse performance during the coronavirus outbreak, or if a contract does not contain a force majeure clause, other options may still potentially be available to excuse performance, such as the defenses of impossibility and impracticability. The Uniform Commercial Code (UCC) provides that a seller is excused from performing under a contract when “performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.” The Restatement (Second) of Contracts defines impossibility as “not only strict impossibility but impracticability because of extreme and unreasonable difficulty, expense, injury or loss involved.”

If a contract does not contain a force majeure clause, and an impossibility or impracticability defense fails, another possible defense for a party unable to fulfill its obligations under a contract due to the coronavirus is frustration of purpose. For the doctrine to apply, “the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense. ”Put differently, frustration of purpose occurs where “a change in circumstances makes one party’s performance virtually worthless to the other, frustrating his purpose in making the contract.” Business should be mindful, though, that economic hardship such as an increase in the cost of performing under a contract is not enough to assert a frustration of purpose defense.

Conclusion

The coronavirus is having a significant and harmful impact on businesses and their ability to perform under their contracts. However, whether a claiming party can successfully invoke a force majeure clause, an impossibility/impracticability defense, or a frustration of purpose defense in order to excuse performance due to the coronavirus is a fact intensive inquiry and must be assessed on a case-by-case basis. Contractual parties must look to the specific language of the contract, including the applicable law, to determine their likelihood of success.

At the Law Offices of Jacqueline A Salcines PA we are here to help. With over 21 years experience interpreting contracts and practicing business law. the best defense is to hire the right lawyer. Let our experience go to work for you. We can assist virtually, by phone, facetime or skype. Call or email us today.

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The Coronavirus and Force Majeure Clauses in Contracts
JACQUELINE A. SALCINES, ESQ.
706 S. DIXIE HIGHWAY 2ND FLOOR
CORAL GABLES, FL 33146
TEL 305.669.5280 EMAIL: J.SALCINES@SALCINESLAW.COM
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