Yearly Archives: 2012

Riparian Rights in Florida

Ownership of waterfront property is very desirable in Florida and often involves unique real property considerations.  When it comes to private waterfront property ownership, it can be difficult to distinguish where the private land rights cease and the sovereign land … Read Full Post

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Liens for Interior Design Services

The profession of interior design has been a consequence of the continued development of interior space and complex architecture.  Typically, the interior designer is tangential to the overall design team of a construction project.  The pursuit of effective use of … Read Full Post

CATEGORY: Florida Construction Industry Law Blog Practice Areas:

A Creditor’s Perspective on Avoiding the Bankruptcy Code’s Automatic Stay

By Hans Wahl, Esquire

The first consideration for creditors during bankruptcy proceedings is the Automatic Stay provision of the Bankruptcy Code. Section 362 of the United States Bankruptcy Code provides the provisions governing the Automatic Stay. The Automatic Stay works as an immediate “injunction” that halts all actions by creditors and potential creditors to collect on pre-bankruptcy debts from a debtor who has declared bankruptcy.

The Automatic Stay applies in all bankruptcy proceedings, including Chapters 7, 11 and 13, and this provision is invoked automatically and immediately upon the debtor filing for bankruptcy. The Automatic Stay is a benefit to debtors because once invoked it works to immediately stop all actions and proceedings to recover claims against the debtor. Conversely, it is a detriment to creditors as they can no longer continue with either collection efforts or legal action for their claims against the debtor.

However, there are exceptions to the Automatic Stay which provide relief to creditors. For creditors seeking to avoid the Automatic Stay, there are three subsections of Section 362, which can be invaluable if taken advantage of properly. These include §§§ 362(b), (d) & (f), which can be considered the creditor’s best allies within the Bankruptcy Code. Read Full Post

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Tortious Interference with Advantageous Business Relationship: When Does Competition Become Interference?

Competition is the rivalry among sellers trying to achieve the objectives of increasing profits, market share, and sales volume by varying the elements of the marketing: price point, product identity, distribution levels, and promotion. Merriam-Webster defines competition in business as … Read Full Post

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Condominium Construction Defect Certification under 718.301(7), Florida Statutes

Condominium living is a way of life in Florida and condominium associations are creatures of the Florida Statutes.  “The peculiar features of condominium development, ownership, and operation require the providing of procedural vehicles for handling disputes affecting condominium unit owners … Read Full Post

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Condominium Construction Defect Class Actions

Condominium living is a way of life in Florida and condominium associations are creatures of the Florida Statutes. A condominium association’s capacity to sue or be sued is one of the enumerated rights created under Chapter 718.  However, it is … Read Full Post

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Termination of an LLC Member Upon Bankruptcy Filing

What happens to the rights of a member of a limited liability company when that member files bankruptcy?  In Florida, that member is automatically terminated from membership in the LLC and any remaining interests in the LLC become property of … Read Full Post

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Attorneys’ Fees – Demand Them or They are Waived, Maybe.

One very important question that is asked by many litigants is, “Can I recover my attorneys’ fees for this case”.  The American Rule on attorneys’ fees is generally that each litigant or party is responsible for payment of his/her/its own … Read Full Post

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How are property taxes in Florida calculated and how can I challenge or appeal property tax assessments?

Every August Florida Property Appraisers will send out their TRIM notices, or Notice of Proposed Property Taxes, advising all tax payers of the proposed assessment on their properties. It is crucial for land owners to critically review this Notice and determine whether the assessment is fair and accurate, as the mailing of the notice commences a very short window in which a tax appeal must be filed. Very often these Notices are inflated to require payment of more taxes than should be assessed.

The county assessed value of your real estate should equal what the property would easily sell for in an arms-length transaction between a willing buyer and seller (Market Value). As often occurs, the true number that the local real estate market will bear is a lower number than what the county property appraisers value lists because properties are not impervious to natural variables that diminish value. If the property has been affected by a diminution in value caused by declining prices and market conditions, detrimental conditions (i.e. cracked slab, landslide, construction defects, condemnation, environmental problems), or other causes, the property owner should consider filing an appeal. Property tax appeals can be filed on any real estate including a home, ranch, vacant land, apartment building, commercial, industrial, or special use property.

Property owners are often shocked when receiving annual notices attempting to re-valuate their property because their property tax values often rise dramatically from a previous valuation (increases in value by 40% or more are not uncommon in some jurisdictions). This Blog post will attempt to answer two common questions we are often asked by Florida land owners: “How does the property tax process work and What can I do if I think my property has been over-valued by the tax man?” Read Full Post

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Failing to Disclose Information During Discovery Can Cause the Rescission of a Settlement Agreement

By: Charles B. Jimerson, Esq. and Rachel A. Heidenberg, J.D. May 2013

As a case develops, parties exchange information through a process known as discovery. Discovery is a truth seeking device- each party is able to discover facts that the other party has. Parties and their attorneys are expected to comply with requests for discovery.

Florida’s Fourth District Court of Appeal recently found in Garvin v. Tidwell that the appellee, Tidwell, violated her discovery obligations by failing to disclose an advertisement that featured her horse. No. 4D11-2712, 2012 WL 523224 at *3 (Fla. 4th DCA Oct. 24, 2012). The court allowed the appellant, Garvin, to rescind the settlement agreement because Garvin was not aware of all of the material facts because of Tidwell’s failure to disclose information during discovery. Id. at *5. Let this case serve as a lesson to any lawyer or party considering executing a settlement agreement if you have been less than truthful or forthcoming in the discovery process.
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