Below are some of the most frequently asked questions from our experience here at Wetherington Hamilton, P.A. and our answers to help you in your search for representation.
How often should the Board of Directors have the association’s governing documents reviewed by an attorney for potential updates/amendments that may be needed?
Certain changes to the laws relating to community associations take effect without any amendments being required to the governing documents of an association but other changes in the law may be premised on the association having certain authority or specific provisions incorporated in its governing documents. For that reason, it would be wise to have the governing documents reviewed at least once every 2 to 3 years to determine if any amendments should be considered for any of the governing documents to ensure the association is able to exercise any rights or responsibilities it may have under Florida law.
Is it the responsibility of the association to secure homeowners insurance on a vacant/abandoned property?
No, not unless the association has a specific duty to do so under its governing documents, and the association should be able to obtain sufficient coverage for any properties it may own from time to time under its existing insurance policies by notifying its carriers of the acquisition of title to any properties by the association as soon possible. In an abundance of caution, the association should also speak to its insurance agent/broker to ensure that the association has adequate protection under its existing insurance policies and that no additional coverage is needed to protect the association due to the acquisition of title to any properties by the association.
If the association takes title to a property, is it liable to pay the mortgage and/or property taxes?
No, an association has no liability to pay any mortgage that remains as a claim against the property after the association’s claim of lien is foreclosed but the association must expect and understand that if the remaining mortgage is unpaid, the mortgagee can begin its own foreclosure proceedings against the property at some point in time, which would result in loss of ownership of the property by the association. Similarly, the association does not have to pay property taxes that are owed in connection with any properties owned by the association but if these taxes are unpaid, it is possible that the unpaid taxes could lead to the issuance of a tax deed and loss of ownership of the property by the association.
Should I use unlicensed contractors or employ people without proof of worker’s compensation?
Never. Unlicensed contractors in any trade are likely to not have insurance and may be incompetent. Go to www.myfloridalicense.com to verify licensing and to check for complaints. Also if a person is not covered by worker’s compensation insurance and are injured on your property, you can and will be sued by them. Your homeowner’s insurance will not cover this.
Remember: You get what you pay for.
Are written contracts required to give someone lien rights?
No. No homeowner should ever deal with anyone without a clear, concise written contract and when in doubt, have an attorney review the contract for compliance with Florida Law. The most important parts of the contract deal with how payments must be made and when.
Who may file (record) a construction lien?
As a general rule, any person firm or entity that permanently improves real property in Florida, with the exception of sub-sub-sub contractors is entitled to a lien, assuming that in the case of a party having a direct contract with the owner, the person or entity must “serve” a Notice To Owner.
Only those persons or entities who are defined as “lienors” in Florida Statutes section 713.01(18) have the right to record a construction lien in Florida.
Only “real property” as that term is defined in Florida Statutes section 713.01(26) can be subject to a construction lien. Real property includes the land that is improved and the improvements on the land, including fixtures. For purposes of construction lien law, only privately owned real property is subject to construction liens. Real property owned by the Federal government, the State of Florida, any county, municipality, school board, or governmental agency, commission, or political subdivision is exempt from liens. Leases may also be the subject of construction liens as well.
What is a construction lien?
In real estate title terms, a construction lien is an encumbrance on real property and is a cloud on the record legal title to the property. The Claim of Lien (the document that evidences the construction lien) is filed in the official public records of the county(ies) in which the property is located, so that anyone performing a title search on the property would discover that the lien exists. In Florida, recording the Claim of Lien does not give the person or entity recording the lien (the “lienor”) title to the property or an ownership interest in the property, but, merely evidences that the lienor may have a legal right to foreclose upon the property and have it sold at a court ordered sale to satisfy a debt in the event the debt is not paid prior to that time.
What does it mean when you recover a judgment against a debtor?
A judgment is good for 20 years in the State of Florida. It allows you to put a lien a debtor’s real and personal property and take the property, wages or funds of the debtor to collect what is owed.
What can I do to diligently collect money owed to me?
Effective collections is a process. Payment is recovered at different stages of the process. It starts with sending notices and calling the debtor. Next is referring it to a collection professional with the ability to pursue payment and knowledge to recover your money.
What is the best way to collect money owed to me?
The key is acting quickly and diligently. The creditor who acts and does not wait for the debtor to pay is the one who is most likely to get paid.
What are the benefits and drawbacks of setting up a trust?
Many people like trusts due to their ability to remain private and the ability of the trust to be administered outside of the probate court. Trust planning can also avoid some estate and generation-skipping transfer taxes and can protect minor and disabled beneficiaries. The biggest drawback to trusts is that many people neglect to fully or properly fund their trusts. Improper or incomplete funding can lead to a probate of those assets left outside the trust. If you work with an experienced attorney, the attorney can be sure that all assets are properly titled so that your trust will be easily administered.
If I died without preparing a will, what will happen to my property?
People who pass away without a will or trust leave estates referred to as “intestate.” Florida statutes contain intestacy laws which dictate the manner in which an estate will be distributed. These laws often do not distribute assets in the way a person would have chosen had they created a proper estate plan.
Do I need to consult an attorney when preparing my will? If so, why?
Yes! Utilizing an online preparation system or “create your own will” kit often does not result in documents that address specific objectives or create documents that conform with Florida statutes. Only an experienced attorney can know what questions to ask and how to design an estate plan that is tailored to your family’s unique and individual needs. Additionally, when estate planning documents are signed in an attorney’s office, they would be signed correctly and in conformity with the law so that your estate plan will be effective.