Common Elements

They say they don’t make no more real estate…they lied.  They make real estate out of thin air—it is called a condominium. Condo Declaration:  This is now real estate.  We have created real estate; we have defined what the real estate is in the covenant and restrictions.  The units are individually owned; however, the structure is owned by the association, along with any common elements.  Then everybody has interest in the structure, pool, cinder blocks, etc.  When you buy a condo, you are buying the space from the outer walls in, but you have access to the common elements. You can also have limited common elements, like garages or storage, which means owned by the association, but you have the exclusive right to use that limited common element. Limited common elements can be transferred based on what the condo docs say.  If the association assigns the garage to the condo unit, then the garage goes with the condo deed.  Coming from the developer, Garage One goes with Unit One.  However, if the condo docs allow the limited common elements to be transferred, then the owner of Unit One can sell Garage One to the owner of Unit Two, and the […] Read More

Survey as Part of Due Diligence

George Washington was a surveyor.  From our country’s beginning we have the concept to define our exact place on the planet in a way that does not get mixed up with any other place.  Of course those were in the era of chains and rods, and when the days were warm, the chains were a little longer than on cold days.  While technology has improved, land survey is still not an exact science. In Florida, property is described as from a place in Tallahassee—how many townships north or south from Tallahassee, and how many ranges east or west of our state capital.  However, Florida also has Spanish land grants.  In the transfer from Spain, the United States said we will honor those land grants, so they stick around and they are not square; they have really weird shapes. So why get a survey?   A survey is part of your due diligence when you acquire a piece of real estate.  Even if you are paying cash in a platted subdivision, get a survey so the title exception for surveys is removed from your title insurance.  A title insurance company is not going to insure something they do not know about.  If […] Read More

Deals in Distressed Real Estate

Just because the selling price is right does not necessarily mean the deal is.  Nobody wants to buy a bargain beachfront only to realize it is a SECOND mortgage and the view is blocked by $400,000 of the first mortgage. Foreclosure sales and bank-owned properties (or REO’s) can be good deals for primary homes or investment properties, but a great purchase price may buy you a terrific expense.  Minimize your risk by having a reputable real estate agent assess the value of the property.  This will underscore exactly how much of a deal you are getting and help you set your bid price.  AND do a title search.  Make sure everyone is on the note who has an interest in the property. Furthermore, have your own attorney look over your shoulder at the deal. Typically, an attorney represents the person writing the check to that attorney.  Even if there is legal counsel present at the closing, bring your own attorney to make sure you get what you think you are getting.  An attorney who represents you and only you in a real estate transaction can examine a deal from all angles and look out for your best interest.  Sometimes the […] Read More

Real Estate Between Friends

Little Bo-Peep and Mistress Mary were best friends.  When Bo-Peep’s sheep ran off, she sold her cottage to Mary for $100,000 in a cash deal, done quickly so Bo-Peep could go find her sheep, and Mary could plant her garden.  Silver bells and cockleshells were just coming up when Mistress Mary was served a Lis Pendens.  She was quite contrary then! What is a little real estate between friends? Since Bo-Peep had owned the place for years and they were such good friends, Mistress Mary had bought it with a Quit Claim Deed, paid cash, and not bothered with title insurance or even a title search. Turns out the lawsuit was from two owners ago; Bo Peep did not even know about the problem.  Mistress Mary had taken on the $100,000 risk at the purchase; furthermore, without title insurance, she did not have a policy to financially protect her investment.  It was such a mess not even Mother Goose could sort it out.  If only Mistress Mary had had a Warranty Deed, at least she could have sued her friend, Bo-Peep!   Do not let friendship pull the wool over your eyes.  There are certain things you can do to […] Read More

DUI Due Diligence

Driving Under the Influence and Due Diligence are not logical companions.  If you did your due diligence, you would have gotten a designated driver or made other transportation arrangements ahead of time.  However, if you are charged with DUI, there is some due diligence you can take to help the penalty fit the crime. A DUI is a serious charge which should be treated seriously.  Besides possible injury or loss of life, fines for DUI convictions start at $500 and run into thousands of dollars, depending on how many times you have been convicted, your blood alcohol level, and if you had a minor in the car with you.  Those are just the penalty expenses, which do not include court costs, legal fees, insurance increases, and possible labor hours lost due to incarceration and/or community service, and/or DUI education. While alcohol can impair your ability to operate a motor vehicle correctly with safety considerations to yourself and others, currently we deal with this problem through penalty, but there are flaws in our system. A DUI defense often deals with proper testing procedure and appropriate punishment.  Was the evidence obtained correctly and is it scientific?  Does the penalty fit the crime?  […] Read More

Conveyance Sans Legal Description

If a real estate conveyance happens in the forest without a Legal Description, did the land convey?  It had witnesses and was notarized, but did the property actually transfer to a new owner without a Legal Description? It depends.  If the description given is such that it describes the property as unique to all others on the Earth…but what if the seller dies, how do you prove it?  A Judge may have to decide, and that gets expensive. If you are defending a title challenge on your home, you could be right, but it can be costly.  Or you can be wrong and it can be costly.  But if you have title insurance, the title insurance policy pays for the legal cost, right or wrong. Do you really want to get a book and do your own brain surgery? DIY Legal Description is not necessarily a cost saving option.  You cannot use the postal address because addresses assigned by the Postal Service are not always unique, and they can change (even if the house does not move).  And you cannot use the Tax Reference because that is for the assessment of taxes and not the conveyance of the property.  Furthermore […] Read More

Why Write a Contract?

There are a couple of reasons to write a contract:  One is that you may have to, and the other is that it is often a good idea. A contract requires four things:  an offer, an acceptance, consideration, and legality (do not make a contract to do something illegal). The Statute of Frauds requires that certain kinds of contracts be in written form and signed by those bound by the contract in order to be enforced.  These include:  marriage, contracts that cannot be completed in one year, land transactions (real estate contracts), executor contracts, goods, and surety.  (They can be remembered with the mnemonic MY LEGS.) Just because a situation does not require a written contract, you may want to have one anyway.   If you are shooting the breeze about doing business together with someone, go ahead and write it down.  Then you both have a record to refer back to, and specified remedies if there is a breach of contract. Furthermore, if you do not understand the terms of a contract, find an attorney who does, and who can explain them to you.  Do not just rely on the other party’s lawyer, but get your own legal counsel who […] Read More

Wrong Place, Wrong Place

Once upon a time a Surveyor went to survey some land.  Then a Builder used that survey to build some houses.  Then some people bought those houses and moved in.  The Homeowners had relied on the Builder, and the Builder had relied on the Surveyor.  They all lived happily ever after…until they learned the Surveyor had started in the wrong place and put everything in the wrong spot. There were houses on property not owned by the people living there.  The County had done the building permits based on the addresses; whereas, the title insurance insured the specific property of the legal description. The fix is to have everybody get together and agree. The other fix is to have an ALTA 9 Title Endorsement on your title insurance that covers you for survey errors. When you buy property, get a survey, and get the ALTA 9 Title Endorsement so you will not find yourself in the wrong place financially if you are in the wrong place geographically.    Read More


Surveying is an inexact science.  We used to use chains and rods to measure land, and on hot days, the chains were longer.  While we have more accurate instruments today, land survey is still not an exact science.  Furthermore, landmarks change; even roads can move, for instance Kings Estate Road is under reconstruction now at the intersection of Dobbs Road and Kings Road.  Old subdivisions with lots and blocks can move with county maps.  People purchase property, build homes, and the land sells again before somebody notices that the houses are 200 feet off.  The new owners own the lot where the physical address is, but their title insurance insures the lot, not the address. A survey is part of your due diligence when you acquire a piece of real estate.  Even if you are paying cash in a platted subdivision, get a survey so the title exception for surveys is removed from your title insurance.  A title insurance company is not going to insure something they do not know about.  If you do not get a survey, they are not going to insure for survey errors.  Also, a survey costs $300 to $500–they are not expensive. You cannot mitigate […] Read More

Mother Goose Gets Goosed with an REO

Mother Goose decided to retire.  After a career of telling fairytales to children, she did not have much of a nest egg, so her real estate agent helped her find a nice little Bank-Owned property, and Mother Goose paid $34,000 cash and moved into a cute little house on a one-acre lot.  She was barely settled when along came a couple of cranes just returned from their summer trip to New York—they walked right in and demanded to know what Mother Goose was doing in their house. Oops. The Bank had summerized the wrong property, and though the “For Sale” sign was in front of the one-acre lot with the house on it, Mother Goose had actually purchased the four-acres of blank land behind the one-acre house lot.  She was now going to have to build a house with money she did not have. Who made the mistake?  Professionals have liability.  Was it the real estate agent?  How did the bank get in?  Why did the bank think they owned it?  Was there a foreclosure mistake?  Mortgage fraud?  Negligent misrepresentation?  There are a lot of details in this transaction. Mother Goose did not even have color of title.  If she […] Read More