Uniform Commercial Real Estate Receivership Act Is NOW THE LAW IN FLORIDA

The Uniform Commercial Real Estate Receivership Act (hereinafter “UCRERA”) became law July 1, 2020, marking a new era for Florida courts.

“Of course, this couldn’t have been anticipated, but with the economic fallout from COVID, and all the closures, the first thing that will be effected when people stop paying their rent is commercial real estate.”

Florida is one of only nine states that have adopted UCRERA since 2017.

UCRERA creates a process for state courts to appoint a receiver in disputes that arise over commercial real estate, typically a default. Once appointed by the court, a neutral receiver can manage an asset and prevent it from falling into disrepair.

Florida judges have the power to appoint receivers, but before UCRERA, there was no statute that addresses the process for commercial real estate disputes.

HB 783 and a companion, SB 660 by Sen. Lori Berman, D-Boynton Beach, passed both chambers unanimously.

For more questions regarding your Commercial Real Estate investment, call Gulati Law today!

Source: Florida Bar Article

Commercial Developers- Environmental Update-Sand Skink Season

If you have property that you are planning on developing, or obtaining development approvals, before March of 2019, in Lake, Polk, Marion, Highlands, Putnam, and portions of Orange and Osceola counties that meet the 3 criteria established by the U.S. Fish and Wildlife Service (USFWS), i.e. location, soils, and above 80′ msl elevation, then you are required to conduct a survey for the Florida sand skink.

The survey is a two-tier approach. First, a pedestrian survey is conducted. This can be conducted any time of the year. If the results are negative, than a coverboard survey is initiated. You can only conduct the coverboard survey for sand skinks from March 1st through May 15th and the survey must occur over 4 straight weeks.

The USFWS requires the placement of 40 coverboards, 2’x2’x.50″, per acre. The boards are to be made of plywood or another similar rigid material. The coverboards should be allowed to acclimate for 7 days before the first sampling event. Each board is to be checked for signs of sand skinks a minimum of once a week for 4 straight weeks.

Following the completion of the survey, a report is prepared and submitted to the USFWS. The USFWS will issue a “Clearance Letter” if the survey was negative for the presence of sand skinks. The boards can be deployed at anytime.

Guest writer- Stillwater Enviromental

5% Down Payment on a Home Purchase will Not Last for Long!

In the past, it has been difficult for buyers to to get a mortgage without having a large down payment requirement.   Some available options this year and going into next are the Federal Housing Administration’s low down-payment program.  Now, banks like Wells Fargo, Bank of America, and TD Bank are offering as low as 5 percent in some mortgages to create an opportunity in the market and compete with FHA’s down payment loans.
TD Bank offers the “Right Step” loan with 5 percent down on mortgages and allows for 2 percent to be paid as a gift from a relative or third party.  Most of the banks now offering 5 percent mortgages are requiring borrowers to pay for Private Mortgage Insurance (PMI), and maintain mortgage and home insurance until there is 20 percent equity built up in the home.  FHA requires PMI for the lifespan of the loan.  To know what works best for you, research your options.
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Source: Money News

What is the Purpose of a Power of Attorney in Estate Planning?

There are many aspects to consider when planning your estate such as living wills, last will and testaments, trusts, beneficiaries, and so on. While all of these moving parts work together to create a successful estate plan, the power of attorney (“POA”) is one of the most significant of them all. This is because without this document, many of your assets may go unprotected in the event that you cannot manage things on your own.

If a POA is not named, and you are in an unstable condition, you will not have access to your assets unless they go through a guardianship proceeding with the courts. These proceedings can be very costly and time consuming, and you do not have the freedom to choose who that guardian may be. Appointing a power of attorney gives you this protection, and also allows you to take advantage of tax reduction.

A Power of attorney is always necessary, even in the case of joint ownership. These laws have changed dramatically within the last ten years, and documentation must be updated and checked on regularly to make sure they are in alignment with the new legislation. Call us at Gulati Law for a free legal checkup to find out the status of your estate plan and what we can do to ensure a smooth process.

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Sale Pending: Can I Still Make An Offer?

In the world of online real estate searches, it can be easy to fall in love with a house before realizing that the property reads “pending sale”. Many homebuyers see a listing and assume that the property is unavailable, when in actuality that may not be the case. “Sale pending” can mean a few different things depending on how the market works for your area.

Understanding the basic real estate transaction process helps to understand what exactly a pending sale means. When someone chooses to buy a home, they make an offer “contingent upon” certain factors. This can be the completion of a property inspection, a bank appraisal, or loan approval. If there is an issue with the inspection or the buyer cannot get financial backing, the buyer has a right to exit the contract. After an offer has been made, the buyer typically has about 3 weeks to get the inspection, appraisal, and the loan approval.

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Although the sale is not a “done deal,” the seller is not able to enter any agreements with another buyer while these processes are being completed. Another buyer, however, is able to submit a “backup offer.” A backup offer functions as a backup plan in case the first offer falls though and the transaction never takes place. Some listings classified as “sale pending” may include transactions where all contingencies have been removed. This means the buyer’s loan has been approved and both the inspection and appraisal have taken place. In this case, the only thing left would be to move toward closing. This may take up to a few weeks, and technically the sale is still pending.

Even though all contingencies have been removed, there is still a slight chance that  the buyer may exit the deal. The buyer will not become the owner until the property is closed and the deed is recorded. Until this happens, a buyer may still need to back out in a case of emergency or if they risk losing the earnest money deposit. Falling in love with a pending property may not mean a dead-end for you. Find out about the status of the property and whether or not it is possible to make an offer at this point. You may also want to find out more information such as if they buyer has had any previous inspections and if there have been any real issues thus far.

The best thing to do when a home you are interested in is pending is to put that property on the back burner and keep up your search. If you truly would like to pursue the home, make your interest known and find out the information you need. The only next step is to wait and see what happens with the current sale.

Source: Zillow Blog

Foreign Buying Flipside- Published in Orlando Realtor Magazine

We are honored that our very own Attorney Gulati’s Article on Foreign Buying Flipside was published in the Orlando Realtor’s Legal Resource Winter Edition.

This Article discusses the FIRPTA withholding in Real Estate Transactions. To read more click here.

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Can Past Due HOA Fees Become Personal Debts?

Homeowners Associations (“HOA”) can seek personal judgments against property owners if they are past due on Association fees. HOA’s can seek liens on the property and even foreclose, but they can also come after a property owner personally.

In Florida, a HOA Lien is stronger than the Florida Constitution’s homestead protection, allowing a HOA to foreclosure on a property, even the primary home of a Florida resident a/k/a homestead property.

The HOA has to follow certain steps and deadlines to comply with the Florida Statutes. If a HOA desires to pursue owners, or former owners, they must act quickly.

A mortgage company or a bank has to foreclose on the property before they can seek a deficiency judgment against the owner or former owner, whereas a HOA’s can seek a personal judgment against the property owner or former owner.

If you are a HOA or Unit Owner please do not hesitate to contact us for further questions, we will be happy to help.

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Gulati Law