The Burbine Law Firm, P.A.
Attorneys and Counselors at Law
727-286-6257
We receive numerous questions regarding law in general and our practice’s specific services. Below you’ll find a few of our most frequently asked questions and their answers. If you can’t find the answer to your question, please feel free to call us for a free personal consultation.
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REAL ESTATE
There are several ways that one could own title to property:
Sole Ownership:
Owned entirely by one person. Words in the deed such as "Bill, a single man" establish title as sole ownership.
Tenants in Common:
A form of co-ownership where property is owned by two or more persons at the same time. The proportionate interests and right to possess the property between the tenants in common need not be equal. Upon death, the decedent’s interest passes to his or her heirs named in the will who then become new tenants in common with the other tenants in common. Words in the deed such as "Bill, John and Mary as tenants in common" establish tenancy in common.
Joint Tenancy:
A form of co-ownership where property is owned by two or more persons at the same time in equal shares. Each joint owner has an undivided right to possess the whole property and a proportionate right of equal ownership interest. When one joint tenant dies, his/her interest automatically passes on to the surviving joint tenant(s). Words in the deed such as "Bill and Mary, as joint tenants with right of survivorship" establish title in joint tenancy. This form of ownership is not available in all states.
Tenancy by the Entirety:
A special form of joint tenancy when the joint tenants are husband and wife -- with each owning one-half. Neither spouse can sell the property without the consent of the other. Words in the deed such as "Bill and Mary, husband and wife as tenancy in the entirety" establish title in tenancy by the entireties. This form of ownership is not available in all states.
Community Property:
This special form of ownership between spouses is only available in “community property” states. Upon death, the decendent's interest passes in a manner similar to tenants in common. Words in the deed such as "Bill and Mary, husband and wife as community property" establish community property ownership.
Trusts:
While not technically a form of ownership, you may own real property through your Living Trust. Upon your passing, your interest would pass to successor trustees and/or beneficiaries you have designated in your trust.
There are a variety of ways that one can hold title to property:
Condominiums vs. Co-Ops:
In a "condo" arrangement, you legally own a particular unit in a multiple unit structure of the building. Under a typical arrangement, you have a share and a right to use common areas such as hallways, elevators, gardens, swimming pools, and club house within that structure. You pay monthly payment to an "association" for maintenance expenses for the common areas. The association is typically run like a corporation with complaint and appeal processes to protect individual rights of owners and to provide a mechanism for resolving disputes within the community.
In a "co-op", the ownership structure is quite different: you do not own your own specific unit in the building but own stock in the corporation that actually owns the building and all the apartments. You lease your apartment from the corporation according to a formula based on the unit’s size. As a shareholder, you have a say in electing the Board of Directors who manage the cooperative.
Recordation of Deeds:
When you purchase real property, you receive a written document called "the deed" which transfers the ownership of the property from the seller to you as the purchaser. The deed gives you formal title in exchange usually for a specified amount of money. The transfer of interest in real property is not complete until the deed is delivered to you. The deed should be recorded immediately with the county clerk in the county where the property is located. By recording the deed, you give notice to all future potential buyers of that property that you now have an ownership interest in that particular piece of real property. Recording also tracks the chronological chain of ownership from a series of buyers and sellers.
Before you purchase real property, a search is conducted at the county clerk’s recording office to confirm that the seller (as well as all previous sellers) has legal title to the property in question. Title insurance typically perform this function to determine whether any defects occurred in prior conveyances and transfers. If so, such defects may then be pointed out and excluded from their coverage.
Tax advantage of owning real property:
Mortgage interest deduction:
The major advantage to owning real property comes from the deductibility of the interest of a home mortgage or a home equity loan. In order to qualify for an income tax deduction, the loan must be for your home or a vacation home that is not rented to others. The deduction must be taken as an itemized deduction on Schedule A of your federal tax return.
Property tax deduction:
Real estate taxes paid to any state or local governments are also deductible on your federal return. Generally, the taxes must be based on the assessed value of the real property and must be charged uniformly against all property under the jurisdiction of the taxing authority.
Capital gains exemption:
Once you sell your residence, you may exclude up to $250,000 ($500,000 for married couples) from any realized capital gains. In order to qualify, you must meet certain requirements: among other things, you must have lived in that home for at least two of the five years prior to the sale, and not have excluded gain from the sale of another home two years prior to the sale.
Quitclaim Deed:
A quitclaim deed transfers or "releases" to the person acquiring the property whatever present interest the grantor has in that property. Unlike a grant deed, a quitclaim deed carries with it no express or implied covenants or guarantees. Therefore, if the grantor has no interest in the property, a quitclaim deed conveys nothing.
Changing Ownership Interest of Property:
While sharing title to property may avoid probate after your death, naming "joint tenants" may have a number of adverse consequences. In effect, adding a joint tenant to your home deed means that you have now gifted a portion of that property to those named. And when you make gifts in excess of $12,000 in value within a calendar year to someone other than a spouse, the IRS requires you to file a gift tax return, and in some cases pay gift taxes. When gifting an interest in your home to anyone, you also are endangering your own financial security. If your new co-owners have creditors or are involved in a divorce, your assets will be at risk. Furthermore, such a transfer may jeopardize certain property tax and other exemptions you enjoy as a senior, veteran, or homesteader.
Creating a Living Trust and naming your children as beneficiaries of the Trust after you die takes advantage of avoiding probate, and it gives you total control of your house prior to transferring ownership. You can also change beneficiaries if you so desire, and also provide for the circumstance if one child predeceases you.
The Closing:
The closing is a final meeting of all the parties involved in the real estate transaction. Attorneys for buyer, seller and bank convene with sellers and buyers to sign and officially transfer title to the buyers. A representative of the title insurance company will also be present to facilitate the transfer of title. The title company is also responsible for recording the new deed.
Before arriving at the closing, the buyer should visit the property to assure that everything is in working order. That means turning on the heat and air conditioning and checking for leaks and other problems. After the closing any problem is the buyer’s responsibility. The buyer should also have all the necessary paperwork and certified checks for the seller and for various closing costs. Otherwise, if the mortgage, title, homeowner’s insurance and other documents required by law are not completed and brought to the closing table, the closing may be delayed.
What is Lis Pendens?
The phrase "lis pendens" means "a pending suit." The purpose of a notice of lis pendens is to tell anyone who examines the title to real property that litigation has been initiated in connection with the real property and that, to the extent a judgment is awarded in favor of the plaintiff in the litigation, the judgment will have priority as of the date of the notice of lis pendens. The purpose of a notice of lis pendens is to keep the property within the jurisdiction of a court. It is important to note that a notice of lis pendens does not establish an actual lien on the property.
In order for a notice of lis pendens to be valid, the property described in the notice must be subject to the rule of lis pendens. Moreover, the court in the underlying action must have personal and subject matter jurisdiction. Finally, the notice of lis pendens must contain a sufficient description of the property.
When Might a Notice of Lis Pendens Be Filed?
When litigation involving property arises, a notice of lis pendens may be filed by the party initiating the litigation. Some actions involving title to property include:
● partition actions
● will contests
● actions to determine adverse claims to property foreclosures
Considerations If A Notice of Lis Pendens Is Found
A purchaser may take title to property subject to the lis pendens. Before doing so, however, it would be prudent for a purchaser to make an extremely careful examination of the underlying litigation. An additional consideration is whether, in such a circumstance, a title insurer would be willing to insure title to the property.
In addition, a property owner may be able to post a bond and initiate proceedings to attack the validity of the lis pendens. If a court determines that the lis pendens action was initiated with an improper motive or is legally invalid, the court will order the expungement of the notice of lis pendens.
Lastly, it is important to note that the laws governing lis pendens vary from state to state.
Trees and Fallen Fruit
Generally speaking, the location of the trunk of the tree determines who owns the tree. While the law is somewhat unclear, it appears that the property owner who owns a fruit or nut tree also owns any fruits and nuts which grow from the tree. Furthermore, it appears that the property owner who owns a fruit or nut tree also has the right to collect fruits or nuts which fall on neighboring property.
Due to the current status of the real estate market in the United States, foreclosures are at an all-time high. Many individuals have gotten into mortgages that they cannot afford, therefore leaving lenders very few options for preventing their own losses. If you are an individual or small time lender that is seeking representation in foreclosing on property, call our office.
Florida foreclosure law states that lenders have the right to initiate a judicial foreclosure in the even that a borrower defaults on their mortgage agreement and is unable to pay for the balance of the mortgage loan. The first step of the foreclosure process begins with the non-payment of the mortgage/lien by the property owner.
The foreclosure process:
Banks/lien holders vary on the amount of time they will allow to pass before they begin the foreclosure process. As a general rule this period is usually 90 days in default.
The first step the bank takes once they decide to foreclose:
The bank files a "Lis Pendens" on behalf of the Plaintiff. A Lis Pendens is a notice of pending litigation. Anyone who acquires an interest in the property is subject to the result of litigation. The Plaintiff is the party filing the Lawsuit. If other parties have a claim against the property, they can join the lawsuit.
Service of process is initiated on behalf of the Plaintiff. The Plaintiff(s) can either hire an Attorney to represent them or can file pro se.
Defendants are the homeowners and anyone else who holds an interest in the property. A Process Server hired by the Plaintiff's attorney will serve the homeowner at the property. If the Defendants are unable to be served personally, then the Plaintiff must place an ad in a newspaper circulating in the County in which the property is located. This is called constructive notice. They will receive the Complaint, Lis Pendens and a copy of the mortgage instrument.
Respond to the Complaint:
Defendants have 20 days to answer the Complaint. An answer is a response to the Complaint filed by the Defendants, which admits or denies the allegations contained in the Complaint. If the Defendants file an answer, the judge will set a hearing date, at which time the Defendants must defend the foreclosure.
Defendants must either send their response by certified mail with return receipt requested to the County Courthouse and the Plaintiff's attorney or take the response personally to the Courthouse with an extra copy which the Clerk will stamp with a date and time of receipt. The Clerk will keep the original and place it in the Defendants file. The other copy should be faxed to the Plaintiff's attorney's office. Defendants should keep any receipts as evidence that the reply was mailed.
No answer filed:
If no answer is filed within the required time, the Plaintiff may move for a default. This may accelerate the foreclosure process in that the Plaintiff can move for a Summary Final Judgment.
A default judgment:
At the hearing on a motion for summary final judgment, if the court grants the motion, a summary final judgment is entered and a sale date is set. The summary final judgment indicates the sale date and the judgment amount.
Time to Cure:
Defendants should be encouraged to respond to the Complaint and also attend the Summary Final Judgment hearing. If the Defendants attend the hearing they will be allowed to plead their case to the judge and ask for more time to resolve the foreclosure. They should tell the judge and the Plaintiff's attorney what they are doing to get the house sold and ask for a minimum of 90 days. In most cases the judge gives 60 days with the Plaintiff's attorney in agreement. If a homeowner does not show up at the hearing the sale date will be set approximately 30 days from the hearing date.
Bidding on the property:
The property is sold for cash to the highest bidder on the sale date at the courthouse auction. If no one bids on the property it goes back to the Plaintiff and now becomes an R.E.O. property or Real Estate Owned by the Plaintiff.
Property is sold:
The clerk of the court will issue a Certificate of Title to the new owner of the property approximately 10 days following the sale.
After the foreclosure sale the homeowner must vacate the property. Timeframes vary from lender to lender but usually the homeowner should vacate within 10 days of the foreclosure sale.
We are skilled professionals that will take the time to assess the lender's situation and determine the best way in which to proceed with the foreclosure. Below are some issues that we confidently handle in conjunction with foreclosures.
Deficiency Judgment
Our firm represents lenders in seeking a deficiency judgment. This is a court order that authorizes a lender to collect a portion of an outstanding debt by foreclosing on and selling the borrower's mortgaged property or repossessing of property securing a debt. This occurs after a finding that the property is actually worth less than the book value of the debt.
Short Sales
Carried out in order to prevent foreclosure, a short sale may be completed when a mortgage lender or bank agrees to discount a loan balance due a mortgagor's economic hardship. Banks often allow this when it will result in a smaller financial loss than a foreclosure. Our firm represents lenders in short sale situations and handles all legal aspects of the matter that may stem from the sale.
We are a firm that is dedicated to standing by clients throughout the entirety of their case and afterwards. Trust your foreclosures matters to The Burbine Law Firm, P.A.
Why you need a Will:
You need a Will in order to ensure that the persons you want to receive your property actually receive that property. Also, you need a Will to ensure that an appropriate person is appointed to administer your estate.
Delay in distribution under a Will:
This is referred to as a Spendthrift Trust and is used to protect the beneficiary’s share of the estate by not distributing all of it until the beneficiary attains a mature age.
Expense and time of probate:
The probate process is not expensive and the typical probate case can be concluded in 3-6 months.
A Living Will:
A Living Will is a document whereby you indicate your desire not to be kept alive by means of life support procedures, if you are suffering from an incurable and terminal condition, and you would be unable to survive without such procedures. This should not be confused with a Last Will & Testament, which is a document that provides distribution of your estate upon your death.
Leaving people out of your Will:
You can devise your property to whomever you choose and in whatever amount. You can also decide, for whatever reasons, that one or more children do not receive any property.
Changing a Will:
You can create a new Will whenever you want. The creation of the new Will revokes your prior Will.
Will does not need to be filed with the court until death:
Your Will can be held confidential until your passing. After your death, it will be filed with the Probate Clerk.
Revocable Trust vs. a Traditional Will?
You can avoid probate proceedings and fees creating a Trust; the Trust is not filed with any court upon your death which means that your financial affairs and beneficiaries remain confidential; your assets are immediately available to pay expenses and make distributions; and you may avoid guardianship proceedings if you become incapacitated.
Legal costs of drafting Revocable Trusts are greater than a traditional Will; and care and time must be taken after the trust is established to transfer title of the assets to the trustee.
This is a decision that must be made on an individual basis after consultation with an attorney.
Will from another State:
If you die with a foreign Will (any Will from a State other than Florida), the costs of administering your Estate may be higher because you may have to have probate in two different States and your Will, while being administered in Florida, will be administered according to a different State’s laws, thereby creating the need for hiring not only a Florida attorney but also an attorney in the other State.
Local governments are established by the Government of Florida and are given varying amounts of non-exclusive authority over their jurisdictions. The law governing the creation of these governments is contained both within the "Florida Constitution" and "Florida Statutes". Local governments are incorporated in Florida by special acts of the "Florida Legislature". There are two general types of local governments in Florida: County governments and municipal governments. Both forms of local government may have a legislative branch (commissions or councils) and executive branch (Mayor or manager), but only counties have a court system. Counties and municipalities are authorized to pass laws (Ordinance), and levy Tax, and provide public service within their jurisdictions.
Sunshine Law:
Florida's Government-in-the-Sunshine law provides a right of access to governmental proceedings at both the state and local levels. It applies to any gathering of two or more members of the same board to discuss some matter which will foreseeably come before that board for action. There is also a constitutionally guaranteed right of access. Virtually all state and local collegial public bodies are covered by the open meetings requirements with the exception of the judiciary and the state Legislature which has its own constitutional provision relating to access.
The Sunshine law requires that 1) meetings of boards or commissions must be open to the public; 2) reasonable notice of such meetings must be given, and 3) minutes of the meeting must be taken.
Applicability of the Sunshine Law:
The Government-in-the-Sunshine Law applies to "any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or political subdivision." Thus, it applies to public collegial bodies within the state at both the local as well as state level. It applies equally to elected or appointed boards or commissions. Although federal agencies operating in the state do not come under Florida's Sunshine law.
Land Use and Environmental Law:
There are laws that may impose specific standards regarding how property can be used, such as how a building can be built, how big or small it can be, and where it may be placed on the property. These specifications may be laid out in local regulations or in building codes. Building codes are developed to protect public health and safety. To ensure compliance with building codes, many municipalities require that property owners obtain building permits before they begin any type of construction or development.
On shorelines, the state adds other rules regarding the size and shape of buildings as well as their locations on lots to these local regulations. The additional regulations are intended to avoid adverse environmental consequences resulting from building construction.
Other kinds of land use regulations serve to protect the environment. Any development that may have an effect on the environment must conform to local, state and federal regulations. For example, the National Environmental Policy Act is a federal law that requires federal agencies to create environmental impact statements and give permission to developers planning projects that could adversely affect the environment. Such statements detail the effects of projects on areas such as air and water quality, safety and wildlife.
Zoning:
Zoning regulations are a particular type of land use control. Their purpose is to control and regulate development and growth of a community in a way that is best for the general public as determined by local government. This is accomplished by dividing a community into areas (zones) that can be used only for certain purposes.
Zones generally fall into four basic categories residential, commercial, industrial and agricultural. Most cities or counties further divide property into much more intricate specifications, such as a zone for single-family houses within a residential area, or zones for light-industrial and heavy-industrial operations.
It is important to find out exactly how a property is zoned, for this could have serious consequences on how the property can be used both at the present time and in the future. Zoning ordinances are changed through amendments. Such changes can be sought by an individual property owner or by local governments. The changes must be determined to be in the best interest of the community, and the opinions of persons affected must be sought through public hearings after notice in compliance with the law.
Another way to seek relief from zoning laws is through a special use permit. Such permits make exceptions for uses of property that are not otherwise allowed under the zoning laws. Other ways around zoning laws include spot zoning, which rezones a small area or even one plot of land. Again, this is only allowed if it benefits the community.
The use of administrative agencies in the United States dates from 1789, when legislation first provided for the administration of customs laws, regulation of oceangoing vessels, and payment of pensions to veterans. But it was in the late 19th cent., with the growth of public transportation and public utilities that agencies began to play a major role in American life. Passage of the Interstate Commerce Act and establishment of the Interstate Commerce Commission in 1887 mark the start of modern administrative law in the United States.
Over time, and especially during the New Deal , with the growth of the nation and its government, federal agencies have assumed legislative and quasijudicial functions—rulemaking, adjudication, investigation, supervision, and prosecution—which neither Congress nor the courts could effectively handle. The traditional notion of the separation of powers has thus been blurred. The principle that Congress cannot delegate its legislative powers has been circumvented by having Congress set primary standards and allowing agencies to fill in the gaps. As a result of their proliferation and the growth of their powers, agencies have come to affect activities ranging from collective bargaining to arms control.
In reaction to the great expansion of agency activity, the Federal Register Act of 1935 required the recording of executive agency actions and procedures in the Federal Register, and the collection of this body of "law" in the Code of Federal Regulations began. The Federal Administrative Procedure Act (1946) provided uniform standards of procedure. The APA guarantees the right of judicial review to any person "suffering legal wrong because of any agency action"; in general, administrative actions will be set aside only for abuse of discretion. Under European legal codes, special administrative courts review the actions of administrative agencies; in common law systems, on the other hand, ordinary courts have complete jurisdiction over controversies involving the validity of agency action.
Need for an Administrative Law Attorney:
Lawyers who practice administrative law help clients comply with -- and in some instances challenge -- rules, regulations, and orders of local, state, and federal government departments. Administrative law attorneys may represent clients before agencies like state workers' compensation appeals boards and federal agencies like the Federal Communications Commission (FCC).
The Divorce Process in Florida
Filing the petition:
In Florida, the divorce process begins by filing a Petition for Dissolution of Marriage with the court and providing your spouse with notice of the proceeding.
Temporary orders:
Often times, a court will issue a temporary restraining order (TRO) or temporary injunction in the beginning of the divorce proceeding. The court typically issues a TRO after a spouse makes allegations of domestic violence or harassment. An injunction will prohibit your spouse from selling off marital property.
Discovery:
It is necessary during any divorce to determine the financial assets and liabilities of your family. Through the process of discovery, we will determine your spouse's income; identify marital property and its value, and the financial debt of the marriage.
Negotiation or Mediation:
Before obtaining a divorce, you must reach agreements concerning property disposition, child conservatorship, parenting rights and child support. Our family law attorneys will help you and your spouse try to reach fair agreements on these sensitive issues through mediation or negotiation.
Divorce Trial:
While it is often in your best interest to reach amicable agreements during pre-trial mediation, sometimes your spouse makes that impossible. Disputes concerning shared parenting (formerly called child custody and visitation), alimony, support awards, and property distributions often cannot be settled out of court. The Burbine Law Firm, P. A. has the trial skills and legal knowledge needed to effectively handle even complicated, messy divorce litigation.
Default Hearing:
Even if you and your spouse agree to all the terms of a divorce, you still must obtain approval of your agreement from a family court judge. To learn more, visit our information center about divorce.
Divorces frequently require the talents of an experienced family law attorney. For answers to your questions about divorce or any other family law matter, contact The Burbine Law Firm, P. A. to set up a free consultation.
Uncontested Divorces:
An uncontested divorce is one in which no issues are being disputed. The husband and wife are able to agree on how they want to divide their assets and debts and how to support and care for their children. At The Burbine Law Firm, P.A., we offer low-cost uncontested divorce services to clients who want their divorce handled correctly but economically. If you and your spouse are able to work together amicably as you part ways, please contact us to discuss our approach to uncontested divorce.
We will walk you through all the issues you need to consider, from alimony to division of property to tax considerations. We will craft a strong marital settlement agreement that will allow you both to move on with your new lives with confidence.
In addition to keeping attorney's fees low, an uncontested divorce takes less time to become final. They are most often completed within a month from the time the parties come to an agreement on the terms of the divorce. An uncontested divorce is also an option for dissolving the marriage of couples who have already gone through the process of legal separation.
Don't Do It Yourself
For couples without children, Florida offers a do-it-yourself divorce option called simplified dissolution of marriage. We strongly encourage clients to retain an attorney rather than take the do-it-yourself approach. Many people pay more in attorney's fees to fix the mistakes made in their do-it-yourself divorces than we charge for doing an uncontested divorce correctly the first time. In addition to the costs, there is an emotional cost to going back to fix a poorly handled divorce. It prevents you from becoming truly free of your marriage and moving on with your life.
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The Burbine Law Firm, P.A.
4500 140th Ave. N. Ste. 202 Clearwater, FL 33762 (727) 286-6257
Serving All of Pinellas, Hillsborough and surrounding Counties
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