Questions

What should I know about building a home in Florida?

It is extremely important to retain the services of a properly licensed, experienced and financially sound construction company. This can be accomplished by contacting various trade organizations or by speaking with an attorney experienced in construction matters. The State of Florida has a Construction Lien Law to which the homebuilder must strictly adhere in order to avoid the possibility of having to make duplicate payments for construction. Federal Copyright Laws also govern design and construction of homes and have severe financial penalties for using all or part of another person’s or corporation’s protected design. The best time to address all of these concerns is before you sign a construction contract with a builder, and the best way to do so is by obtaining a thorough evaluation of the contract from an attorney.

To what extent are homesteads protected from claims of creditors in Florida?

While a person’s homestead, defined as a maximum of one-half acre inside a municipality or 160 acres outside a municipality, is obviously not protected if the owner has pledged it as collateral by, for example, a mortgage, the Florida Constitution does provide an unlimited protection from the claims of non-consensual creditors for legal residents of Florida. The property must meet certain definitions to qualify as homestead property, and the timing of the creation of the homestead in relation to creditors’ claims may be an issue in evaluating the legitimacy of the homestead exemption from execution and forced sale.

Are handwritten wills valid in Florida?

Florida does not recognize holographic (handwritten) wills unless they meet the requirements for all valid wills, which is that the testator sign the will in the presence of two witnesses who then sign the will as witnesses in the presence of the testator and each other. Ideally, in addition, wills should be self-proven with appropriate language and notarization in order that the witnesses will not have to be located after the testator’s death.

I’m buying a home in Florida; why do I need a lawyer?

A lawyer is uniquely qualified to advise you in all legal aspects of a home purchase, and should be consulted when you start shopping for your home rather than after you sign the purchase contract. Unlike the real estate broker, who often owes his loyalty to the seller for whom he is the agent, your lawyer is working only for you. Your lawyer is an invaluable source of information about area regulations, such as your ability to rebuild your home should it be damaged by a storm. He or she typically knows about planned taxing districts, which could affect the future cost of maintaining your home, as well as other government projects. Your lawyer is best suited to protect your interests once you have selected the property you wish to purchase. The lawyer will make sure the purchase contract is enforceable, has customary provisions, and protects you. He or she can provide for the type of ownership of the home that will fit into your overall financial needs and plans. Did you know that title insurance, often offered in place of attorney representation, excepts from coverage matters disclosed, and those matters are not always standard? Unless you understand the law involving land titles in Florida, you cannot evaluate whether title is good and will be acceptable to a future purchaser. Additionally, there are many other professionals involved in a real estate purchase: the real estate broker whose job it is to put sellers and buyers together; the mortgage lender who provides financing to purchase the property; the appraiser who evaluates for the lender whether the value of the property is sufficient to support the loan; the surveyor who makes sure that the land being purchased is as set forth in the contract; the title agent, often a lawyer, who researches ownership of the property. Who better to advise you on all the aspects of a real estate transaction and the various determinations arrived at by these other professionals than your lawyer?

Are less expensive alternatives to litigation available to resolve disputes?

Florida strongly endorses alternative methods of dispute resolution, such as arbitration and mediation. Many contracts are written to require the arbitration of disputes, and that is always a consideration when drafting any type of agreement. Arbitrations can be handled under the provisions of the Florida Arbitration Code or under the auspices of a private organization such as the American Arbitration Association. Mediation has recently gained a great deal of attention as an alternative to litigation. The courts of the Twentieth Judicial Circuit of Florida, which encompasses Lee, Collier, Charlotte, Hendry and Glades Counties, uniformly require mediation of a case before it goes to trial. Mediators are neutral parties whose role is to assist the disputing sides to resolve their differences themselves. Under rules promulgated by the Florida Supreme Court, mediators must complete a course of training and a mentorship program before being certified. While most mediations occur after a suit is filed, pre-suit mediation is an available alternative.

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