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A recurring source of litigation in Florida revolves around the rights of buyers and sellers operating under an “As Is” contract for sale of residential property.

          A. The Seller’s Obligations to Disclose Under Florida Law

Despite the existence of contractual language excusing a seller of a property from representations (ie the “AS IS” language), Florida law provides a separate independent duty to disclose material facts that would substantially affect the value of a piece of property.  Johnson v. Davis, 480 So.2d 625 (Fla. 1985).   Importantly, the test for determining the materiality of a fact in a transaction of this nature is whether the fact “substantially affects the value of the property.”  Dorton v. Jensen, 676 So.2d 437 (Fla. 2^nd DCA 1996). That means that when a seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer.  Johnson, 480 So. 2d at 629.   The examples of such factors are endless but often include things like prior insurance claims, roof conditions, floods, construction defects, mold, termites, and septic/sewer system issues.  Ultimately, the determination of whether the defect or issue if established is material would be question for the jury.  A non-disclosure case requires the Plaintiff to establish the following elements: (more…)

Most insurance policies provide that an insurance company maintains the right to take an “Examination Under Oath” or EUO of its insured(s) as a pre-condition to extending coverage. The Examinations Under Oath are handled by Insurance company attorneys and can serve as the basis for denying insurance claims if damaging testimony or documents are obtained.  Many times the Examination Under Oath will provide a request for a production of documents to occur simultaneously during the Examination Under Oath.  The Examination Under Oath typically takes several hours and can be very intensive.  These proceedings are very similar to depositions and are typically taken in the presence of a Court Reporter who will then maintain a written transcript of the proceeding for future use.    (more…)

Pursuant to the Florida Rules of Probate Procedure an interested person has 30 days to object to a Final Accounting and Petition for Discharge within thirty (30) days after service of the documents.  Importantly, written objections must state with particularity the items to which the objections are directed and must state the specific grounds upon which the objections are based.  Finally, procedurally all objections must be served on the Personal Representative and interested persons no later than 30 days from the date of service of the Petition for Discharge or Final Accounting.   Then the objecting party must set a hearing on the objection and that Notice of Hearing must also be heard.  If you fail to serve the Notice of Hearing within 90 days, your objection will be deemed abandoned and the Personal Representative may make distributions. (more…)

Obviously the words contained in a last will and testament have significant impact.   Countless books in law libraries are filled with cases centered on determining the intent of the deceased or through the application of specific language in a Will.  In Florida, we generally recognize several different categories of testamentary gifts: (1) pecuniary (2) specific (3) demonstrative (4) general or (5) residuary.  (more…)

In Florida, if a loved one has passed away while residing in a rental property, the heirs of the estate and surviving family members may be frustrated to learn that Florida Law does not provide a mechanism for easy access to the rental unit to retrieve the deceased’s personal belongings.  Unless the person attempting to gain access to the property is listed on the lease, the landlord is prohibited by Florida law from providing access.

The Florida Landlord Tenant Act sets forth the relationship or rights between a landlord and tenant, and it contains a provision especially important for this scenario.  Florida Statute 83.59 provides: (more…)

One of the most common tools used to take advantage of the elderly in Florida is the Power of Attorney document. This document, once executed by an individual (the Principal) gives either specific or general powers to another (the Agent) to act on behalf of him or her.  These documents are excellent tools for estate planning purposes. Like it or not, most of us may experience some mental capacity issues that would prevent us from diligently maintaining financial investments, property management or simply paying bills as we age.  Unfortunately, over the years we have also seen these power transfers substantially abused.   (more…)

Florida law provides a procedural and statutory guide which sets for the rights/powers and obligations of an Executor in the State of Florida. In the State of Florida, an Executor is referred to as a “Personal Representative”—this is the same as an “Executor” as the term is used in other states for all practical purposes.

What is an Executor (Personal Representative)? (more…)

One of the most common questions I receive from folks is simply “What is probate court?”  Probate is the court-supervised process of distributing the assets of an individual, referred to as his or her “estate” after they pass away.  Probate in Florida is handled by the Circuit Court of Appeals, probate division.  This means that there will be a judge specialized in probate procedures to assist with the process of administering the estate assigned to your case.   In Florida, probate procedure is governed by the Florida Rules of Probate and the substantive law or statutes contained in Florida Statutes Chapters 731 through 735.   (more…)