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

Happy Bill of Rights Day

Two hundred and twenty-four years ago the Bill of Rights was ratified on this day.  The Bill of Rights is made up of those first ten amendments to the United States Constitution, granting things like freedom of speech, jury trial, protection against unreasonable search and seizure, and many other useful rights.  These rights have been around awhile now and they may seem intuitive today, but the history of the Bill of Rights was anything but straightforward. Ironically the Bill of Rights was never actually a “Bill” in Congress.  It got called that because England had passed a “Bill of Rights” a hundred years earlier.  Some felt these rights should have been included in the Constitution.  Others did not think we needed this Bill of Rights at all because states would have their own bill of rights.  Originally there were seventeen amendments, but the Senate rejected some and combined others.  Furthermore, some states did not accept the Bill of Rights right away.  Massachusetts did not get around to ratifying the Bill of Rights until 1939 (two years before President Franklin D. Roosevelt declared December 15 to be “Bill of Rights Day”). Today we celebrate the Bill of Rights, but every day […] Read More

Taking License with the Word ‘License’

You cannot take license with the word ‘license,’ not in a legal sense. When you go to the theater, you buy the license to be there, but that license can be revoked at any time.  The same is true at Disney.  ‘License’ has a legal meaning that is specific. If you lose your license, you may need a few other legal words.  Seek competent legal counsel to help you come to terms with your legal situation.     Read More

Taking Title as a Married Couple

What is a marriage?  A contract.  You do not necessarily think about the legal ramifications at the wedding, but who inherits the house if one of you dies, or who gets the house in the case of a divorce?  You can fix that with a prenuptial agreement, you can fix the contract.    However, just because it is a contract does not mean it is enforceable.  Talk to an attorney and figure out how to make it enforceable. Getting married can change your life.  It can also change how you hold property title.  So you and your boyfriend bought a house together and took title as Tenants in Common.  The only unity there is the Unity of Possession.  Either one of you can sell your interest in the house without notice to the other owner.  But if you get married, neither of you can break the tenancy nor otherwise convey the property without consent of the spouse. Married couples hold title as Tenants by Entirety.  This includes the unities of Joint Tenancy with Rights of Survivorship plus the Unity of Marriage, which subscribes to the legal fiction that a married couple is one entity.  You cannot disinherit your spouse.  Your wife […] Read More

Reverse Mortgage, A Non-Negotiable Instrument

Take a dollar bill in your wallet; it says, “This note is legal tender for all debts, public and private.”  Whoever holds that note has the right to enforce it, that is a note.  Most Mortgage Notes are unconditional to pay sum certain with interest, so most Mortgage Notes are negotiable instruments.  In Florida, whoever has the right to enforce the Note has the right to enforce the Mortgage.  In a Reverse Mortgage, is the promise to pay unconditional? A Reverse Mortgage puts a lien on your house and you have an equity line.  The lender is either going to give you a line of credit up front, or along the way, and when you die, the mortgage is due. A Reverse Mortgage is NOT unconditional; you do not have to pay it.  The Note itself says that the lender’s only way to collect is to sell the property.  It is not negotiable because it IS conditional.  Thus, a Reverse Mortgage is non-negotiable; you cannot transfer it by just signing the back of it.  There is a simple fix—Assignment of Mortgage—but most lenders do not do that. With a regular Mortgage Note, if you endorse it in blank you can […] Read More

Tenancy Types & What Happens If Somebody Dies?

If you share home ownership, your rights of survivorship depend on what type of tenancy you have.  Your type of tenancy also affects your right to convey the property.  In Florida there are three basic co-tenancies to hold real estate title, and each of them has its own “unities.” Tenancy in Common – The only unity is Unity of Possession. Each person in the co-tenancy had the right to possess the property.  The parties can own the property in whatever percentages they want.  Any party can sell their interest to anyone without notice to the other owners. Joint Tenancy with Rights of Survivorship – There are four unities: Unity of Possession (just like Tenancy in Common) Unity of Time (the co-tenants must take title at the same time) Unity of Title (they must take title on the same instrument) Unity of Interest (each party has the same percentage interest as the others) Any of the co-tenants can break the joint tenancy with rights of survivorship by conveying their interest to anyone else.  Tenancy by Entirety – This includes the unities of Joint Tenancy with Rights of Survivorship plus the Unity of Marriage, which subscribes to the legal fiction that husband […] Read More

Reverse Mortgage Reminder: Pay Your Property Tax

Tis the season to pay your property taxes…even if you have a Reverse Mortgage.  Property taxes and insurance are the homeowner’s responsibility in a Home Equity Conversion Mortgage (HECM), a.k.a. Reverse Mortgage. The FHA’s Reverse Mortgage is for homeowners 62 or older and allows them to withdraw funds from the equity in their primary residence in a fixed monthly amount or a line of credit or a combination of both. A Reverse Mortgage can be the right thing in the right circumstances.  Sometimes a Reverse Mortgage can be the best solution to help an older person live more comfortably—able to afford medicine, food, and basic living expenses—however, it is not right for everyone.  There are positives and negatives which the homeowner needs to know and understand, for instance: Even if your lender is sending you a monthly mortgage payment, it is up to you to pay taxes and insurance on the property.    Read More

Face the Music – Process Servers & Local Band OE-2-KB

There is no good time to be served a lawsuit, but some moments are better than others.  You do not want to be out on a date, listening to a local band and receive service of process.  The best time to face the music starts when the process server first appears. Service of Process is personal delivery of notice that a lawsuit is filed against you, and an invitation for you to respond.  It is the court’s way of gaining jurisdiction over a matter and making sure that everyone involved is informed. While it may not be good news for you, it is better than no news.  Nobody wants a surprise lawsuit with no chance at defense.  Furthermore, the faster you address the issue, the sooner it can start to be resolved. If you owe money, probably you know it is coming.  You can control the scene by accepting Service of Process at your door, instead of at a time and place inconvenient to your schedule and dignity.  The sooner you face the music, the sooner the song can be played out, and you can avoid an awkward encounter elsewhere. For a fun way to face the music, come see […] Read More

Once Upon a Domestic Dispute

There was a Man who had a Girlfriend.  They got in a verbal disagreement over finances.  She rather thought he should bring home more money; he thought he was doing the best he could.  The Man called the cops, but he was the one who wound up wearing the orange jumpsuit. The Man had said something to the Girlfriend and then went to his car to go to work.  The Girlfriend followed him to his car, beating on him.  He had his gun in the car.  In accordance with the two-step process of firearm safety, he stored the clip separately (which she knew).  In order to get her to back off, he moved the slide, and the sound was enough to send her back into the house.  That is when the Man realized he still needed money from her to buy gas to go to work.  He called the cops so they could help him talk to her. The most difficult thing a cop has to do is deal with a domestic dispute.  They do not know what they are walking into.  Though the Man in this case had not touched the Girlfriend, the cops had to make a decision […] Read More

Mediation Instead of Trial

Sometimes you just want to settle a conflict.  Even if it costs you more money, sometimes it may be worth it to you personally, professionally, emotionally, or with the right set of circumstances to have a matter settled.  A Mediation rather than a Trial may be able to bring you that. In Mediation, you control the crash.  In Mediation, you do not get as much of a winner and a loser, but you do get to settle the matter.  Depending on your circumstances and your goals, Mediation may be the right thing for you. A trial is going to result in a winner and a loser, and a judge is going to decide which is which.  In Mediation, however, you have the opportunity to sit down with the other side and hammer out a deal.  Then once the deal is made, it is made, and you have settled the issue.  It gives both sides more control over the outcome. There are a number of civil law matters where Mediation can be used, such as divorce and consumer debt defense.  Seek competent legal counsel to determine if Mediation is an option in your case, and if it would be beneficial to […] Read More