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September, 2013

Are Land Trusts Good For Anything?

September 30th, 2013

Posted in Asset Protection

A land trust is “an express written agreement or arrangement by which use, confidence, or trust is declared of any land […] under which the title to real property […] is vested in a trustee.”  Fla. Stat. § 689.071.   It is an average tool at keeping property ownership partially concealed from prying eyes, but it does not generally offer great asset protection from creditors.  Most land trusts are self-settled trusts.  Self-settled trusts are trusts that are formed by the property “owner” for the benefit of the same.  Self-settled trusts typically offer little to no asset protection for the property “owner”/beneficiary.  When a creditor properly seeks, through the discovery process promulgated by the Florida Rules of Civil Procedure, disclosure of property that the beneficiary has an interest in, the beneficiary will usually have to disclose the land trust property.  Once disclosed, the property of the self-settled land trust may be subject to the creditor just the same as if the property were held individually by the owner.  Many attorneys maintain that land trusts offer little to no asset protection and are simply a facade giving the illusion of protection while providing the benefit of limited privacy.

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Community Association Election and Recall Disputes Subject to 60 Day Time Limit

September 25th, 2013

Posted in Condominium & Homeowner Association Law

This year’s legislative session introduced changes to the election provisions governing condominium associations, cooperatives, and homeowner associations.  Most notably, there is now a requirement that any challenge to the election process must be made within sixty (60) days after announcement of the election results.  Fla. Stat. § 718.112(2)(d)4.c.;  Fla. Stat. § 719.106(1)(d)1.a.; Fla. Stat. § 720.306(9)(a).  As to recall petitions, if the Board fails to notice and hold a required board meeting after being served with a recall petition, or otherwise fails to file a petition for arbitration disputing the recall, an owner may file a petition for arbitration and must now do so within sixty (60) days after expiration of the 5 business day period during which the Board is required to hold a meeting to address the recall.  Fla. Stat. § 718.112(2)(j);  Fla. Stat. § 719.106(1)(f)5.; Fla. Stat. § 720.303 (10).   Finally, a petition for recall will not be accepted by the Division when there are sixty (60) or fewer days until the scheduled reelection of board members sought to be recalled, or when sixty (60) or fewer days have elapsed since the election of the members subject to recall.
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Know Before You Tow: Towing Within a Community Association May be More Complicated Than You Think

September 16th, 2013

Posted in Condominium & Homeowner Association Law

Limited parking is often a concern of community associations. While impermissibly parked vehicles may be in the form of improperly parking in an assigned parking space, obstructing sidewalks, blocking access to residents’ driveways, or otherwise impermissibly occupying much needed space, community associations should be aware of a few things before engaging in the self-help remedy of towing.

First, the association should ensure that it has specific authority in the governing documents (declaration of covenants and restrictions, bylaws, articles of incorporation, or rules and regulations) to tow.  An amendment to the declaration, which typically requires at least a majority of ownership approval, is recommended in order to withstand challenge.  A board rule may possibly be passed provided that authority to adopt the rule is set forth in the governing documents, however, such rules are judged by the more easily-defeated “reasonableness” standard.  Accordingly, a declaration amendment is recommended whenever possible.
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Florida Property Taxes – You Must Act Now if You Wish to Contest Your County’s Proposed Assessments

September 9th, 2013

Posted in IRS & Tax Information

Your local Florida property appraiser mails out the Notice of Proposed Property Taxes (Truth in Millage or “TRIM” form) in August of each year.  Property owners or taxpayers who wish to contest or appeal their property value to the Value Adjustment Board must file a petition (one of the DR-486 forms) with the clerk of court within 25 days of the Notice of Proposed Property Taxes.  For St. Johns County as an example, the petition for adjustment must be filed no later than September 13, 2013.

Typically as with most legal matters, it’s best to try and resolve the matter prior to filing a petition.  If time permits, it’s advisable to contact your local property appraiser’s office to resolve issues such as market value, classification, or an exemption.  Keep in mind that there are many other issues concerning property taxes in Florida that can be applicable, such as portability, the Save Our Homes cap (currently 1.7% for 2013 per the CPI index, which is lower than the 3%), joint ownership or adding someone to your deed, inheriting family-owned property, or the transference of property.  More information can be found at the below two Florida Department of Revenue websites.  As always, promptly and timely consult with a qualified tax attorney should the need arise.

http://dor.myflorida.com/dor/property/taxpayers/howdoi.html

http://dor.myflorida.com/dor/property/taxpayers/

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HOAs Disputes Must Proceed to Pre-Suit Mediation Before Lawsuit May be Filed

September 8th, 2013

Posted in Condominium & Homeowner Association Law

As residents of properties located within a HOA can attest, there are many disputes that arise which serve to disrupt the peace of the community and quickly serve to rankle feathers.  However, even where an actual violation exists (either on the part of the homeowner association or a member, guest, invitee, or lessee), it is likely that the parties must first submit to mandatory pre-suit mediation rather than immediately rushing to the courthouse steps.  In this regard, the Florida Legislature has found that “alternative dispute resolution” has  been successful in reducing court dockets and trials and offered a more efficient, cost-effective option to litigation. Fla. Stat. § 720.311(1).  Accordingly, the parties must participate in mandatory pre-suit mediation before filing suit, unless a party is requesting emergency injunctive relief.  The following items are “disputes” requiring submission to mediation before filing suit:

  • Disputes between an association and a parcel owner regarding use of or changes to the parcel or the common areas and other covenant enforcement disputes
  • Disputes regarding amendments to the association documents
  • Disputes regarding meetings of the board and committees appointed by the board, membership meetings not including election meetings, and access to the official records of the association
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