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Preliinary-Notice

What To Do If A Construction Lien Is Placed On Your Home in Florida

Construction

Liens are a legal remedy used by contractors, construction companies, and home service providers in Florida to ensure payment for completed services. A lien allows them to make a claim against your property to settle a debt. While an involuntary home sale to pay off the debt is rare, liens can make selling or refinancing your home difficult.  Construction lien law can be complex and confusing, so this article is an overview and starting point.  One priority for any property owner is to file a notice of commencement with the local clerk’s office before or very quickly after a project starts.  Many clerk’s offices have an acceptable form to follow for this notice, or go to Fla. Stat. §713.13 and follow the form provided.  The notice of commencement will generally have the following: 

  • The address of the property. 
  • The nature of the work performed. 
  • The names and addresses of the owner, general contractor, and surety. 

The reason for doing this is to provide accurate information so those individuals or companies that want to file a lien have the information they need to help them do so properly.  If you do not file a notice of commencement or record an inaccurate notice, this may be used by claimants whose time limit has lapsed as an exception to collect when otherwise their claim would have been barred.  

Who Can File A Lien?  

Under Florida’s Construction Lien Law (Chapter 713, Florida Statutes), anyone who worked on a property and didn’t receive payment for their services may file a lien on that property. Liens can be filed against your property even if you have already paid the contractor or business but they failed to pay their employees or subcontractors. Various service providers may file a lien, including material providers, contractors, subcontractors, architects, engineers, interior designers, and surveyors. Homeowner associations (HOAs) and the IRS can also place liens if you have unpaid dues or owe back taxes. 

How Liens Are Filed  

To file a valid lien in Florida, the eligible person or business must do so within 90 days from the last day they furnished labor or materials to improve the property to record a construction lien properly.  The person or business owner must inform you of their intention to place a lien through a formal Notice to Owner, following the specific format stated in Chapter 713 of the Florida Statutes. The Notice to Owner should include your name and address, a description of the services or work performed, the amount due, the filing date, and a clear warning about the implications of a lien, as described in the statute.  A proper lien acts as security to their right to payment from the property owner, and once recorded, the lien is valid for one (1) year.      

How Do You Remove a Lien From Your Property?  

If you receive a Notice to Owner or discover a lien on your property, you have several options to attempt its release: 

  1. Pay off the lien. The most straightforward and quickest way to remove a lien is to pay off the debt owed to the contractor or service provider with a valid claim against your property. Keep a record of all payments made, and once the final payment is made, request a final payment affidavit and a formal release of lien to ensure its removal from your property record. 
  1. Request a Lien Release If you believe the lien was wrongfully filed, you can request a formal release of the lien from the lienor. Provide documentation proving the debt was paid in full and request the lien’s removal. 
  1. File a Contest of Lien. The owner may pressure the business or person filing the claim by filing a Notice of Contest of Lien form as provided in the body of the statute (Fla. Stat. §713.22(2)), which shortens the time the claimant has to institute their action to sixty (60) days, or the lien is automatically extinguished. 
  1. Allow the Lien to Expire. If the lienor fails to file a lawsuit within 1 year of filing the lien or 60 days from a Contest of Lien, the lien automatically expires.  

Real Estate Attorneys You Can Trust: The Boutty Law Firm. Dealing with property liens in Florida can be complex and requires adherence to specific guidelines outlined in state law. If you have a lien on your property, seek assistance from experienced real estate attorneys like our team at The Boutty Law Firm. Contact our Maitland, Florida, office at 407-622-1395 to discuss your case. 

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Creditors-Img

How to Handle Creditor Claims During Probate

Probate

Personal representatives have many roles during the probate process, including valuing the estate, notifying beneficiaries, and assisting in distributing assets. Another crucial responsibility personal representatives have during probate is to notify creditors that the estate has entered probate and to settle debts. There are specific requirements personal representatives and creditors must follow to ensure valid claims are paid. Below, we discuss what you need to know about handling creditor claims during Florida probate proceedings.  

What is a Creditor Claim? 

Creditor claims are formal notices against the decedent’s estate, indicating that a debt is owed. Valid claims are paid from the estate’s value before assets and funds are distributed to beneficiaries listed in the will. 

Types of Creditors 

Anyone the decedent borrowed money from and didn’t pay in full could have a valid creditor claim against the estate. Creditors can be individuals, companies, or organizations. Types of creditors may include:  

  • Mortgage lenders  
  • The IRS 
  • Plaintiffs in open lawsuits against the decedent 
  • Individuals who were promised payment from the estate upon death 
  • Funeral service providers  
  • Credit card companies  
  • Home-related service providers  
  • Medical facilities  
  • Ex-spouses who are owed back child support 
  • Business owners

How to Notify Potential Creditors 

Personal representatives must follow specific guidelines to formally notify creditors that the decedent’s estate has entered probate, as stated in  Florida Statute 733.2121. Personal representatives must publish a Notice to Creditors once a week for two consecutive weeks in a newspaper located in the county where the estate is administered. If there isn’t a local paper, the notice can be published in any newspaper in general circulation in the county. The notice must include the following: 

  • The decedent’s name 
  • Court address 
  • Estate file number 
  • The personal representative’s contact information 
  • Date of first publication 
  • Creditor claim period dates  

The personal representative must provide proof of the public notice to the probate court within 45 days of publication.  

In addition, personal representatives must locate potential creditors and send the notice directly to them. Personal representatives must conduct proper research to find and notify potential creditors. However, they aren’t liable for failing to inform creditors as long as a reasonable effort is made.  

Creditor Claim Distribution 

Creditor claims are paid from the value of the estate. Creditors must show proof of the money the decedent owed by referencing a contract, providing a promissory note, or supplying a transaction history of other payments. According to Florida Statute 733.705, creditors have three months after the notice publication to make claims against the estate. If the creditor was contacted directly, they have 30 days to file a claim. In most cases, claims are paid out five months after the first notice was published. 

Florida laws dictate the hierarchy used to determine how creditor claims are paid off. Claims related to probate administration and attorney’s fees are paid off first. Next are funeral service providers. Then, any federal claims to the estate, such as back taxes, are paid.  

Objecting a Claim  

Personal representatives or any beneficiary with a vested interest in the estate can object to a potential creditor claim. They must file a formal written objection within four months after the notice was published or 30 days after the creditor filed the claim — whichever was later. 

Navigating the Complexities of Probate with the Boutty Law Firm  

Probate is a time-consuming process with many formal parts. To ensure probate proceedings are handled effectively and efficiently, it’s important to work with an experienced Florida probate attorney, like our team at the Boutty Law Firm. We’ll help guide you through the probate process and help assess issues, such as handling creditor claims. Call us at 407-710-0461 to schedule a consultation.

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Blog

Common Disputes in Construction Law 

Construction

The complex nature of construction projects and the number of people involved can be a breeding ground for legal disputes. From bidding on a project to discovering defective materials years after completion, many issues can arise surrounding construction. When legal matters emerge regarding construction law, count on an experienced construction law attorney like the Boutty Law Firm to work with you during legal disputes and challenges before, during, and after a construction project. Below, we discuss some of the most common causes of construction disputes in Florida.  

Construction Liens  

One of the most common types of construction disputes is a construction lien, also known as a mechanic lien. Liens are a powerful type of legal action that ensures contractors and workers are paid for their services promptly. This is done by leveraging a legal right to the property where the work was performed to secure payment. Any contractor who worked at a property and didn’t get paid can issue a lien—even if the owner paid a general contractor who failed to pay their subcontractors. Contractors who wish to file a lien against a property must inform the owner of their intention with a Notice to Owner, which must be sent within 45 days after the service is completed. The Notice to Owner must follow strict guidelines as stated in Chapter 713 of the Florida Statutes, so it’s best to work with an attorney to ensure you follow the proper procedures. If payment is not received even after sending the Notice to Owner, our legal team will follow up with a Claim of Lien and the appropriate legal action to ensure you’re paid for your work.  

Defective Materials  

Another reason for construction disputes is claims of defective products or materials. According to Florida Statute 558.002(5), a construction defect is a deficiency arising from the specifications, planning, supervision, observation, repair, remodeling, or design of a piece of real property. Types of construction defects include:  

  • Defective materials and products by manufacturers  
  • Code violations during the time of construction  
  • Faulty design  
  • Failure to adhere to trade standards and best practices  
  • Premature wood deterioration 
  • Foundation cracks  
  • Sagging or leaning foundation or walls  
  • Faulty wiring  
  • Black mold and other moisture problems  

To file a claim based on a construction defect, you must prove who was legally responsible, such as a construction team, designer, or product manufacturer. Construction defects can take years to discover; sometimes, they aren’t visible until a storm or remodeling project exposes them. After the defect is found, property owners have four years to file a claim. They must also notify the negligent party 60 days before filing a claim. 

Contract Disputes  

Unclear contracts are another common cause of construction disputes. Contracts should provide all the necessary information needed to ensure the construction company and business owner are on the same page. Some things that should be included in a construction contract are a lien warning, a detailed project description (including the scope of work, documentation, and role designation), cost estimates, and the process of submitting a change order clause. Learn more about what to include in a construction contract here.  

Bid Disputes  

Disputes over the accuracy and completeness of a construction bid can lead to a formal bid dispute against the company or organization that requested it. There are two general types of bid disputes: pre-award and post-award. Pre-award disputes challenge the process of selecting a winning bid by the business owner. A post-award dispute challenges the construction company that won the bid. Post-award disputes can be filed due to the legitimacy of the construction company (such as being unlicensed), failure to complete a bid by the required deadline, or errors in the bid itself.  

Boutty Law Firm—Experienced Construction Lawyer 

Legal construction issues are complex and extremely detailed, so it’s essential to use an attorney that is experienced in the construction industry. Attorney Benjamin Shane Boutty has over 20 years of experience as a certified contractor and construction company owner. Now, he uses his expertise to help you with any legal issue regarding construction projects, no matter how complicated. Contact us today at 407-710-0540 to schedule a free consultation.  

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Agreement

Key Clauses to Include in a Buy-Sell Agreement

Real Estate

A buy-sell agreement is a business contract that defines the terms of ownership if a business partner leaves the company, is incapacitated or dies. These agreements are also referred to as buyout agreements, business wills, or business prenups. Many businesses benefit from buy-sell agreements, including partnerships, closed corporations, and LLCs. Any company with multiple partners or owners should consider signing a buy-sell agreement. Here are the key clauses you want to include in your business buy-sell agreement. 

Name the Parties Involved  

One of the first clauses every buy-sell agreement should include is naming each partner and their current stake in the business. You will also need to have each partner sign the contract to make it legally binding.  

Triggering Events  

A buy-sell agreement should include the types of events that make the agreement go into effect. The most common types of triggering events are when a partner:  

  • Dies 
  • Becomes disabled or incapacitated  
  • Retires 
  • Leaves the business  
  • Files for bankruptcy
  • Is terminated

Selling Structure 

The selling structure defines what the remaining partners will do with the business shares if one owner leaves. There are several types of selling structures that you could utilize, as described below:  

Cross-purchase  

In a cross-purchase, the remaining owners purchase the departing owner’s stake in the business.  

Entity purchase 

Also referred to as a redemption agreement, an entity purchase is when the business entity buys the partner’s shares, not an individual owner. 

Wait-and-see 

A wait-and-see selling structure allows the remaining business owners to decide whether to utilize a cross or entity purchase once a triggering event has occurred. The business owners may also choose to use a combination of these structures.  

Estate Planning 

One of the primary reasons to have a buy-sell agreement is to define what happens to a partner’s stake in the business after they pass away. Unless otherwise specified in the agreement, the partner’s share in the company could go to a surviving spouse or other beneficiaries listed in their will. The shares could also be sold to an outside entity as part of the estate if there is no buy-sell agreement. To prevent this, you should include what will happen to the partner’s share of the business upon their passing. It’s important to be clear and specific in this clause to avoid vagueness that cannot be enforced.  

Business Valuation 

A buy-sell agreement should include an evaluation of the business as it currently stands and state how the business’ future value will be calculated once a triggering event occurs. Various methods can be utilized to determine the value, including hiring a business appraiser or using a predetermined formula to calculate the value. 

Purchase Funding 

Once a triggering event occurs, there is no guarantee that the remaining partners will have enough funds to purchase the departed partner’s shares. To ensure proper funding for the remaining owners to buy the business shares, you’ll want to specify purchase methods in the buy-sell agreement. For example, some business owners may choose to take out life insurance policies on the other owners, so if the partner passes away, they can use the policy’s proceeds to purchase the shares. You should also specify whether the remaining owners can use a payment plan, place a deposit, or use other methods to buy the shares.  

Boutty Law Firm —Handling the Legal Aspects of Your Business 

A buy-sell agreement is critical to your business succession plan to ensure continuity if a partner leaves or passes away. Entrust the help of an experienced business attorney, like the ones at the Boutty Law Firm, to help you draft a legally-binding buy-sell agreement to protect your business for future generations. Our team is prepared to handle all your business issues, no matter the complexity. Contact us today at 407-710-0461 for a free consultation. 

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Wills-Trust

Wills or Trusts: What Should You Use?

Wills or Trusts

Wills and trusts are valuable estate planning tools that help you distribute your financial assets and possessions to your beneficiaries after you pass away. However, wills and trusts serve different purposes. In certain circumstances, having one or both of these tools as a part of your estate planning portfolio may be beneficial. Which should you choose? Below, we discuss what wills and trusts are and when each should be used.

What is a Will?

A will, formally referred to as a “Last Will and Testament,” allows you to divide your assets and personal possessions among your beneficiaries, including family, friends, and charitable organizations. In a will, you can indicate specific individuals to receive anything from real estate property to family heirlooms. You can also allocate funds for particular purposes, like donating to charity or setting aside a college fund for your grandchildren. The process of validating a will and distributing assets is a formal process called probate, which the Probate Division of the Circuit Court in Florida oversees.

When to Use a Will

Wills are best utilized when you want to list your personal possessions and give them to specific people. The assets in your will could be anything of sentimental or financial value, such as your great-grandmother’s handmade quilt, your wedding ring, or a portrait your spouse painted. If you have minor children, a will is needed to name a legal guardian for them if you pass away. You may also include a personal note to your loved ones in your will.

How to Create a Will

For a will to be legal in Florida, it must be a typed, written document that you and two witnesses sign. It is preferred if the two witnesses are not beneficiaries listed in the will. Handwritten wills are not considered valid in Florida courts. Wills only go into effect after you pass away, giving you complete control over your assets while alive. Wills are also simple to amend.

What is a Trust?

The purpose of a trust is to transfer financial assets from your estate to your beneficiaries while avoiding probate. Trusts are financial agreements that closely mimic

business partnerships. They are made between you (the trustor), a person who is in charge of overseeing the trust (a trustee), and the people who will receive the assets placed in the trust (your beneficiaries).

When to Use a Trust

Trusts may be a beneficial estate planning tool if you have many types of financial accounts. Trusts allow you to plan for services like Medicaid and avoid tax penalties for things like life insurance payouts. Another benefit of establishing a trust is that beneficiaries receive their assets in less time than with formal probate proceedings. They also cannot be challenged in court like a will can, accelerating the asset division process.

How to Create a Trust

Trusts go into effect the day they are created. Once you pass away, the assets stated in the trust are automatically transferred to the beneficiaries you list. Trusts are either revocable or irrevocable. You can control the assets inside a revocable trust while you are alive, but irrevocable trusts cannot be changed once made, and you lose access to the assets in them.

Wills or Trusts – Which Should You Use?

In many cases, having a will and a trust makes sense. Each estate planning tool has different goals and purposes, so there are benefits of having both as a part of a comprehensive estate plan. In this situation, a will would be used for you to send a personal message to your loved ones and name beneficiaries for specific assets like family heirlooms, personal possessions, and financial gifts. A will is also needed if you wish to name a guardian if you have minor children. A trust would be used to help manage the financial accounts of your estate and allow your beneficiaries to receive monetary funds in a way that avoids probate and is tax-friendly.

Boutty Law Firm – Orlando Estate Planning Attorneys

Not sure whether a will or trust is right for you? Contact the Boutty Law Firm. We will help you develop an estate plan so that all your assets are divided among your loved ones as desired when you pass away. Contact our Orlando offices at 407-710-0461 for a consultation today.

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