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Homeownership,Concept

Understanding Common Property Disputes in Florida

A property dispute is a type of real estate dispute that can occur during any part of the homeownership process. Property disputes can arise whether you are buying a home or have lived in the same place for several decades. A property dispute is a disagreement over how a piece of property is used, such as a home, business, waterway, or vacant land. Below, we break down the most common property disputes in Florida and how to resolve them. 

Boundary Disputes

Boundary disputes occur when there is a disagreement over a homeowner’s property line location. Property lines should be surveyed and documented on a property owner’s deed, but discrepancies between surveys may show two people own the same land. It may not initially be a problem until constructing a shed or fence on the disputed portion of land, adding or removing trees from a property, or using the area unsatisfactorily (such as for old car part storage). 

There are two possible outcomes in a boundary dispute if the case goes to court. First, an ejectment may be ordered, determining the offending structure or possessions are trespassing on your land and must be removed. Or, a declaratory judgment may be issued, which is when a judge legally determines the property owner.

Easement Disputes 

An easement is when one person owns a piece of property, but someone else is authorized to use it for a specific purpose. For example, many utility companies and government agencies may have easements to access your property to maintain electrical poles or water lines. There are several types of easements: 

●      Easement appurtenants—do not expire within a specific timeframe and are intact despite who owns the land. 

●      Easements in gross—are tied to a person or an organization, not a particular property. Utility companies often possess easements in gross to access and maintain power, cable, and internet lines. 

●      Prescriptive easements—may be requested when there is continuous use of land over a significant period (20 years or more in Florida). 

 

Titles 

Title disputes arise when selling a home Title disagreements occur when someone opposes ownership over a particular portion of a property. If there was an error in the property survey or title search, litigation might be necessary to rectify the problem. If you are in the process of a home sale, working with an experienced real estate attorney to perform a title search can help correct any defects. 

How to Settle a Property Dispute 

Property disputes tend to come with high emotions, as they may pit neighbor against neighbor. When settling a property dispute, the most friendly outcome is for you and your neighbor to resolve the dispute independently. However, this is not always possible. If you and your neighbor cannot agree, you may need legal assistance to file an injunction and settle the dispute. When filing your claim, you will want to present documents and gather information such as surveys, titles, and boundary maps. For assistance, contact a real estate attorney at the Boutty Law Firm to help file your claim. 

Settle Property Disputes Amicably with the Boutty Law Firm

Property disputes can be very complicated and emotional, especially when dealing with neighbors. If you are facing a property dispute in Central Florida, seek the counsel of an experienced real estate attorney like the team at the Boutty Law Firm. Call our office at 407-710-0461 for an initial consultation.

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probate litigation

What is Contested Probate?

Probate is the process of executing a decedent’s will and distributing their assets to beneficiaries. While having a will is an important part of estate planning that ensures your loved ones know how you would like your estate to be handled, sometimes family members disagree about executing the will. When this happens, the will can be formally challenged in a process called contested probate. We discuss contested probate in detail below.  

Understanding Probate

Contested probate occurs when anyone with a vested interest in the decedent’s last will and testament formally challenges its validity. Someone may challenge a will if they believe they were unjustly removed from it, it was not properly executed, or it was inaccurately drafted. When probate is contested, a formal challenge (or petition) is submitted to the probate court, and a judge decides on the will’s validity. 

 

Reasons for contesting a will 

There are several reasons someone may contest a will. In these situations, the burden of proof lies with the person challenging the will. 

Validating the document 

For a will to be valid in Florida, it must meet the requirements stated in Florida Statute 732.502, such as being signed at the end of the document by the decedent and two witnesses. If the document was not properly signed or witnessed, it could be contested or revoked. 

Undue influence 

Undue influence is one of the most common ways wills are contested. Undue influence means that the will was drafted or altered due to forceful manipulation by someone who would substantially benefit from it. The person challenging the will must offer evidence that the decedent was pressured or persuaded into drafting the will in a particular way to benefit another person who was active in its creation. 

Improper removal

If someone believes they were unjustly removed from someone’s will, they can dispute it. The person may prove they were included in a previous version and that the decedent was removed by mistake or unjustly.

Capacity

The person must be of sound mind and full mental capacity to draft a will. If someone proves that the decedent was not fully aware of the will they were preparing, it could be challenged and considered invalid. The person challenging the will would have to provide evidence that the decedent had a persistent condition such as dementia or Alzheimer’s that prevented them from signing the document willfully. They may also provide evidence that the decedent suffered from delusion, meaning they were legally “insane,” which would invalidate the entire will. 

Under duress

If it is proven that someone signed or modified a will under the threat of physical harm to themselves or a loved one, the will could be challenged in court. 

Fraud

A fraudulent will is made under false pretenses, such as drafting a will based on false information from a noted beneficiary.

 

How to contest a will 

Generally, a will can be contested within 90 days of the notice of administration, the formal start of the probate process. Beneficiaries or other interested parties may challenge a will. A formal petition must be presented to the probate court where probate is taking place (the county where the decedent resided). The petition should specify whether the will should be revoked, modified, or invalidated and why the will is challenged. Once the estate is notified, the case will be settled or go to a hearing for a judge to determine the will’s validity. 

Florida contested probate attorneys 

Challenging a will can be a complex legal process, so it is beneficial to have experienced probate attorneys at The Boutty Law Firm represent you to contest a will’s validity. Call us today at 407-710-0461 for a consultation. 

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Construction

Important Items to Include in a Construction Contract

Construction projects require collaboration between multiple businesses from various industries to be completed successfully. Like any business transaction, having a well-written and thorough contract is essential when taking on a construction project. Construction contracts define the risks and liabilities of contractors, subcontractors, construction companies, and clients. Here are the main items to include in a construction contract. 

Lien warning

In Florida, a lien warning is required for all direct contracts greater than $2,500 that deal with single or multiple-family homes up to four units. The disclaimer ensures property owners are notified that contractors or anyone who works on a property have the right to impose a claim on the property and sell it for parts, materials, and labor if they are not paid (which is called a lien). The notice also ensures homeowners are aware that they may be subject to a lien even if they paid their contractor in full, but the contractor failed to pay employees. Florida Statute 713.015 details the exact wording and requirements for the disclaimer. It must appear in 12 point font that is capitalized in bold on the first page of the contract or on a separate page. It must also be signed and dated by the property owner. 

Project description

Another essential item in a construction contract is a detailed scope of work. The project description should include who will complete each part of the project. This section should also contain any relevant documents, such as blueprints or drawings, that will help accurately represent the scope of the work. An in-depth project description holds everyone involved with the project accountable and helps them understand the project’s goals. 

Change order clauses

One common aspect of a construction contract is defining how change orders will be handled throughout the project. Change orders describe how the project will be revised if the scope of work alters due to unexpected challenges, timeline modifications, mistakes, and aesthetic changes.

Construction schedule

Although changes may occur, a construction contract should estimate a relatively accurate timeframe of when the project should be completed. This section should also detail how to adjust the original timeframe if needed. 

Specifications 

This section is a detailed overview of the techniques and materials used in the project. Specification sections can be very technical, which is why they should be formatted according to the Construction Specifications Institute (CSI) MasterFormat so that it is easy for contractors and subcontractors to understand.  

Cost estimate

Although it is nearly impossible to estimate the exact cost of a construction project, the contractor or construction company must understand all aspects of the project to provide an accurate cost estimate. 

Indemnities 

Another critical aspect of a construction contract is to include indemnities. Sometimes referred to as a “hold harmless” clause, indemnity helps manage the risk taken by the involved parties during the project. Indemnity is a payment made by one party to another that covers damages, injuries, or losses during the project due to the negligent acts of another party. 

License and insurance information  

Including your business license number and insurance information in a construction contract shows that you have the means to complete the contract and are covered in case of accident or injury. Florida requires contractors to hold a minimum of $300,000 in general liability coverage for bodily injury and $50,000 for property damage. Including your information shows your ability and credibility to complete the project. 

Special considerations or conditions

Lastly, any considerations or conditions relevant to the project should be included in this section. Any details that will be helpful for the property owner, contractor, and subcontractors to know will assure the project scope is as clear as possible. 

Boutty Law Firm: Central Florida construction attorneys 

Construction contracts can be very complicated and have a significant economic impact if not written correctly. The Boutty Law Firm has 20 years of experience working with construction companies. We will ensure you create a construction contract that helps you get the job done and keeps your clients well-informed. Contact us at 407-710-0461 or get in touch using our contact form for assistance in creating your next construction contract. 

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new business

Choosing the Right Business Entity

It is a new year, which means you may be thinking about starting a new business. Launching your business begins with choosing the right entity, accounting for your future business goals. In Florida, there are various options available when establishing your business. Here are the most popular business entities and the advantages and drawbacks of each type. 

Sole proprietorship

Sole proprietorships are the most common business structure. New businesses are automatically classified as sole proprietorships in Florida unless registered with the state. Sole proprietorships are owned and operated by individuals; there is no distinction between the business and the person. If you want to establish a different business name, you will need to register your sole proprietorship under a fictitious name, called a DBA (“doing business as”). DBAs must be registered with the state.

Advantages

Sole proprietorships are quick and easy to set up. They require almost no paperwork and are set up automatically.

Disadvantages 

Since there is no distinction between the owner and the business, sole proprietors are liable for personal and business assets. This means someone can sue a sole proprietor for their home and other personal assets, not just their business profits. 

Limited Liability Company (LLC)

Another typical business structure is an LLC. LLCs may be operated individually or with several employees and contractors. LLCs must be registered with the state and keep up yearly registration fees and licenses, depending on the type of business. 

Advantages

LLCs are separate business entities that are not tied to the business owner’s personal assets. If someone were to sue an LLC, they could only sue for the business’ profits. LLCs allow for distinguished business structures without the formalities of a corporation. 

Disadvantages 

LLCs require some paperwork to set up and be registered yearly with the state. LLCs require separate accounting for the business, which increases paperwork and tax preparation costs.

Corporations 

Corporations are entirely separate entities from individuals or business owners. Essentially, a corporation can act as an individual: loaning and borrowing cash, filing lawsuits, hiring employees, and entering contracts. Business ownership is obtained by purchasing stocks in the business. While many individuals may operate a corporation, shareholders are the business owners.

Advantages

The advantages of creating a corporation are that it is self-sufficient and runs separately from business operators. Forming a corporation may be a good idea if your future business goals include international expansion. 

Disadvantages 

Corporations have strict guidelines and laws they must follow. Detailed record keeping is required, and accounting records must be submitted to the state to ensure legal operation. There are also more taxes involved with forming a corporation. 

Non-profit 

A non-profit is a charitable corporation formed for philanthropic, educational, scientific, or religious reasons. Non-profits are run by a board of directors and operated by individual employees or volunteers. Non-profits must apply and be approved for 501(c)3 (tax exemption) status. 

Advantages 

Non-profits are tax exempt, by far one of the most significant advantages of this business entity.

Disadvantages

There are many policies non-profits must follow. This type of business structure is only available for certain kinds of businesses. 

Boutty Law Firm: Orlando business attorneys 

The Boutty Law Firm can help ensure your new business is in good legal standing. We can help you file paperwork to get your business affairs in order, as well as draft up employee contracts and help file quarterly reports. Contact us at 407-622-1395 to learn how we can help your business grow. 

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Trusts

Types of Trusts You Should Know

A trust is a common way of transferring wealth from one generation to another as a part of an estate plan. Depending on your estate, having a trust may have several advantages. Below, we discuss the different types of trusts so you can evaluate which one should be a part of your estate plan. 

What is a trust? 

A trust is a fiduciary relationship between a trustor (the person creating the trust), a trustee (the person managing it), and beneficiaries (those receiving the assets of the estate). A trust is a way of transferring the property and assets of an estate without going through the probate process after the trustor passes away. Trusts cannot be contested in court, which speeds up the process of dividing assets. Trusts go into effect once created, even if the trustor is still living. Trusts give trustors and trustees more control of their assets and estate division. However, they are generally more expensive to establish and must be regularly managed. Every trust must include a trustor, a trustee, a successor trustee, and beneficiaries. There are many different types of trusts to serve the needs of your estate. Below, we discuss the most common ones. 

Living trusts

Living trusts are established when the trustor is still living and managed during their lifetime. They can be changed and altered after their creation. While the trustor is still living, the property and assets within the trust are owned by them. A living trust becomes “operational” after the trustor’s passing. A living trust may be revocable or irrevocable. 

Revocable trusts

Revocable trusts are a type of living trust with the purpose of avoiding probate. Once the trust is set up, no lawyer or court fees will need to be paid. Once the trustor dies, the property in a revocable trust is immediately transferred to the named beneficiaries.

 Irrevocable trusts 

Irrevocable trusts are often established for tax reasons. These types of trusts cannot be altered or revised. The trustor loses control of the assets in this trust when creating it. These types of trusts help with planning for Medicaid, gifts, and tax from life insurance payouts. 

Testamentary trusts 

Testamentary trusts are trusts that are established from instructions in someone’s will. This type of trust allows a trustee to distribute estate funds to beneficiaries after the trustor passes away. The will’s executor is in charge of this type of trust. These trusts reduce estate tax liabilities but still need to go through probate. Another benefit of these trusts is that you can name minors as beneficiaries and establish milestones or timeframes that will give them access to the assets in the trust, such as when they turn 18 or graduate college. 

 Charitable trusts 

Charitable trusts are trusts established to gift funds or assets to charity after the trustor passes away. Charitable trusts reduce or avoid the estate tax liability of the gift. 

Maitland estate attorney: Boutty Law Firm 

An experienced estate planning attorney at the Boutty Law Firm will help you determine which type of trust is best for your particular estate. We will also walk you through other estate planning options based on your needs. Call us at 407-622-1395 to schedule a consultation. 

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