At Forefront Law, we guide our clients through many issues pertaining to real property.
We represent property owners in curing title defects and other quiet title matters, boundary disputes, adverse possession matters, errors in legal descriptions in deeds, and easement/access issues. To ensure that a property owner has clear title, they sometimes must file a lawsuit in the circuit court of the county where the property is located. This is called quiet title action, and the purpose is simply to ask the court to declare a judgment terminating rights or interests of others in title to the property. Often a quiet title action will contain multiple Counts or causes of action, depending on whether the property owner bringing the lawsuit obtained title by a deed or a tax sale, or by adverse possession without color of title. Sometimes an error in the legal description in a deed within the chain of title will also require legal action.
We also draft documents for real estate transactions, including real estate purchase and sale contracts, warranty deeds, quit claim deeds, enhanced life estate deeds. When an owner of real property wishes to sell the property, a purchase and sale contract is signed by the seller and purchaser. This contract sets forth the terms of the sale and stipulates which party will be responsible for the closing costs and other costs associated with the sale. Often our clients need to execute deeds to their property to transfer their interest in the property outright to another party. This is accomplished by a warranty deed or a quit claim deed. An enhanced life estate deed is an effective way for a property owner to retain a life estate interest in the property and convey the remainder interest to one or more parties upon the death of the property owner. The property owner retains the right to revoke the enhanced life estate deed without the remainder interest holder joining in. The enhanced life estate deed is often included as part of our clients’ estate planning matters.
We represent both contractors and homeowners in construction lien cases condominium and homeowner association legal issues. The Florida Constitution provides that homeowners are afforded protection of their homestead from claims of creditors. Florida residents can qualify for this homestead protection if the home is their primary residence, the residence is up to 160 acres of contiguous land if located outside of a municipality or is up to ½ of an acre inside a municipality. In many cases, this means that creditors who allege to be owed money by the homeowner cannot attach their claim to the owner’s homestead or force a sale of the homestead. However, exceptions to this protection is liens for construction services on the home, liens for taxes, and homeowners association and condominium assessments on the property. There are many requirements and time frame deadlines in Florida Statutes pertaining to liens placed on the homestead and other improved property, which often require the assistance of an attorney. We assist both lienors and homeowners in matters pertaining to liens encumbering real property.
The answer is yes, if you are making the Florida home your primary residence and if you have not applied for a homestead exemption on another property. The homestead exemption can provide helpful tax advantages. Florida law provides for up to $50,000 homestead exemption and once homesteaded your annual real property assessment shall not increase by more than the lower of 3% or the percentage of the Consumer Price Index. There are annual deadlines to apply for your homestead exemption. Depending on the county in which the property is located, you can often apply for the homestead exemption online by going to your county property appraiser’s website. The link to the Duval County Property Appraiser’s homestead exemption application is: County of Duval Online Homestead Exemption Application (coj.net)
Purchasers of condominiums in Florida are entitled to receive current copies of the condominium association’s Declaration, Articles of Incorporation, bylaws, rules, and other documents. Purchasers have 3 days from the date of receipt to review these documents and may cancel their contract to purchase the condominium property for any reason within this time period. Make sure the contract to purchase the condominium property has a condominium rider or addendum that specifies these rights. The condominium association is responsible for maintaining and repairing the common elements of the condominium community. Usually this means things like sidewalks, roofs, elevators, common hallways, vegetation/landscaping, parks, facilities, water features, etc. Owners of condominium property are required to pay association fees, in accordance with the condominium documents. The association can sue and be sued and is the entity responsible for bringing legal action against owners who violate the condominium association rules or fail to pay their assessments.
Owning title means having a legal interest in the property. You can own title in real estate in Florida in several ways:
- Sole ownership: this means holding title to the real property in your name only. In the deed, you would be listed as the “grantee”.
- Joint Tenants with Rights of Survivorship: this means holding title with one or more person as “grantees” or “joint tenants”; when one grantee dies, their title interest passes to the other grantee or grantees, in equal shares, rather than to their estate or heirs.
- Tenants in Common: tenants in common usually hold the same percentage of interest as grantees; when one grantee (i.e., tenant in common) dies, their share passes to their heirs at law. This usually requires that the grantee’s heirs have to file probate to have that share properly distributed.
- Tenancy by the Entireties: this is form of ownership exclusive to married couples. The couple is treated as a single legal entity and mutually co-own the real property. The consent of both parties is required to sell the property or to mortgage it. When on spouse dies, 100% of the ownership vests in the surviving spouse.
- Life estate and remainder interests: a person can own something called a life estate in the real property, which means they have the exclusive right to live in and possess the property during their lifetime. Upon the death of the life estate holder, 100% of the interests in the title vest in the “remaindermen” or the remainder interest holder or holders. Depending on the language in the deed, the remaindermen can either own the property as joint tenants with rights of survivorship or as tenants in common. An Enhanced Life Estate Deed provides additional rights to the life estate holder, as explained in the main article, above; the owner or grantor is also the life estate holder.
- In trust: Property can be held in the name of a trustee of a trust. The trust must have been created and executed in accordance with Florida law and must be in existence at the time title is taken. It is wise to retain a trust attorney to draft the trust and ensure compliance with Florida law and to accomplish the goals of the trustor or creator of the trust.
A quiet title action is a lawsuit to make sure you have clear title to your real property. The quiet title complaint is filed in the circuit court in the county in which the real property is located and asks the judge to issue a judgment cutting off the rights of others who may have interests in the property or who are asserting rights to the property and constitute “clouds” on your title. Sometimes the cloud is created because of heirs of a deceased owner, lien holders of record, or leaseholders. Sometimes the cloud arises due to a defect in a deed in the chain of title. When you decide to purchase property in Florida, a title company will first review the chain of title and instruments of record, and may require that you file a quiet title lawsuit before they will issue title insurance. You must make sure to name all of the necessary defendants in your quiet title complaint in order to obtain clear title at the conclusion of the lawsuit. Some of the defendants may be dead or unknown, which means a Notice of Action may need to be published in an area newspaper. Any known living defendants must be served with process, usually a sheriff’s deputy of that county. It is advisable that you contact a real estate attorney to represent you in a quiet title action.