OBJ - Readers' Choice Awards

READERS' CHOICE AWARDS
Establishments without equal
Locals' favorite places to work, live and play
Orlando Business Journal - December 15, 2006
by Bob Mervine
Staff Writer

More than ever before, our readers' favorites in this year's battle of the brands reflects a broader, more eclectic preference in the 79 different categories that make up the Readers' Choice Awards.

We also got the largest number of nominations ever -- again evidence of Central Florida's varied tastes and interest in spotlighting their personal favorites.
Professional services

Pohl & Short, founded by Frank Pohl, describes itself as a "business boutique law firm in Winter Park" and an "alternative to the large commercial law firms." They get the nod from our readers as the Best Small Law Firm.

New rules:
As the size and complexity of the annual Readers' Choice Awards changes, Orlando Business Journal has revised its rules concerning the number of categories in which individuals or companies can be recognized.

In the past, winners were based solely on the total number of votes. However, this year's winners are limited to just one category per person or company.
For those getting the most votes in more than one category, the editors chose the most appropriate category in which to receive recognition, based on a variety of criteria.

THERE’S OIL IN MY BACKYARD. I'M RICH...MAYBE

Winter Park Home, Volume 4 / Issue 4, 2006

We all have dreams of finding natural wealth in our own back yard, just as Jed Clampett did. Of course the likelihood of your striking oil in Central Florida is as probable as finding three feet of snow on your lawn.

What you may find, though, is a letter in your mailbox from an individual who owned your property 40 years ago, informing you that he not only owns the mineral rights below the surface of your land, but also, that he has the rights to dig on your land for those minerals (called rights of entry). This letter may go further on to state that for a mere $800 he will release those rights of entry in your favor. Impossible? The Orlando Sentinel reported a similar incident recently in its Central Florida Edition, but for property in Palm Beach County. Could it happen here? Let’s look at some facts:

Ownership of land consists of surface rights (to build on or to use the surface of the land) and mineral rights (the rights in the minerals that lie beneath the surface of the land, which includes the right to dig for those minerals, unless otherwise released). Both the surface rights and the mineral rights are automatically transferred when property is conveyed, unless a contrary intention is stated in a deed reserving those mineral rights.

Historically, the State of Florida reserved these mineral rights, including the right of entry, in many of its land transfers to private citizens. Often referred to as “Murphy Deeds,” these conveyances recited the State’s reservation of rights to “a one-half interest in any minerals taken from the subsurface area, together with the right of entry.” Ultimately Section 270.11 of the Florida Statutes was passed in 1986, effectively releasing the State’s right of entry for mineral reservations for any “contiguous tract of less than 20 acres in the aggregate under the same ownership.” Most Florida residence owners, and many commercial property owners, therefore do not have to be concerned with this right of entry for a State of Florida reserved mineral interest.

Interestingly, however, even though the State has granted the automatic release of the right of entry by this statute, it will rarely release the rights to any royalties in the underlying minerals.

Private rights of entry-where a private individual or business entity retains a percentage interest in the mineral rights, together with a right of entry, are more problematical. In Lake and Volusia Counties, for example, many properties are subject to these reservations, and the Lake County public records are laden with releases for specific tracts of land.

Should you be concerned? It depends on where you live in Florida. In Orange and Seminole counties, these private mineral reservations are unusual; in Lake and Volusia counties, they are more prevalent. In Northwest and Southwest Florida, these mineral reservations are commonplace.

If you receive a letter requesting money to release the right of entry, the first thing you should do is look at your title insurance policy and determine if there is an exception for mineral reservations on Schedule B. If there is none, you should contact your underwriter at the number provided on the jacket of the policy for guidance. If you fail to contact your underwriter you might effectively waive any rights to make a claim under your policy. Even if there is an exception for these mineral reservations, your concerns probably should be minimal. In developed residential areas the owners of these mineral reservations are generally not interested in actually mining the land, but rather in generating income from these releases. Additionally, permits would need to be obtained from various governmental authorities not only to dig for the minerals, but also, realistically, to uproot property owners from their homes.

Clearly, you should NOT pay anyone for a release without first determining whether or not the claim is legitimate and the release benefits both you as the current property owner, and all future owners of the property. If the matter isn’t resolved by your title insurance policy and your underwriter, you should consult with an attorney to determine your rights.

Visit our website for more information on this subject.

Frank Pohl founded Pohl & Short, P.A. based upon the belief that a high quality small commercial law firm was needed in the Orlando, Florida area as an alternative to the large commercial law firms. He still believes that client responsiveness and satisfaction has a place in a fast changing legal profession. Frank has been involved in the Central Florida community for more than twenty-five years. He has been a dedicated past board member of many local organizations over the years. Frank graduated magna cum laude with a B.G.S. Degree from the University of Miami in Coral Gables, Florida; attended the University College at the University of London as an undergraduate studying British literature and British history; obtained his Juris Doctorate Degree in 1979; and obtained a Masters of Law and Letters Degree (LL.M.) from New York University School of Law in 1980. Frank is a member of The Florida Bar, the California Bar, and the District of Columbia Court of Appeals. He is also admitted to the U.S. Supreme Court. He has served on the Orange County Bar Association Real Estate Committee and is a member of the The Florida Bar’s Real Property and Corporation and Business Law Section. He has also served on the Florida Bar Grievance Committee.

WATER, WATER EVERYWHERE – IS ANY OF IT MINE?

Winter Park Home, Volume 4 / Issue 5, 2006

The Florida peninsula is bordered on the East by the Atlantic and on the West and South by the Gulf. Together with its rivers, and approximately 30,000 lakes, Florida truly is a land where there is “water, water everywhere.” People frequently ask me who owns these different bodies of water, whether the general public has an unlimited right to use them for recreational purposes, how to access them, and the rights of the landowners abutting them.

While dry land can be bought and sold, bodies of water and the land beneath them are treated differently. When Florida became a state in 1845, it acquired ownership of all land lying beneath non-tidally influenced (i.e. fresh) navigable water bodies. Fresh water lakes were presumed to have been navigable if the original government survey for the state depicted (“meandered”) the shorelines of these lakes. Unfortunately, although many of the lakes in Florida are navigable, only 190 of the approximately 30,000 lakes were meandered. In addition, no list has been compiled to define additional navigable vs. non-navigable bodies of water. This has created considerable difficulty in determining the ownership of land lying beneath the water’s surface in Florida’s fresh water bodies.

Unless the State of Florida has conveyed the underlying land to the private property owner, title companies generally will not insure any portion of the submerged land. This is true even when the lake has dried up or the property has been platted by a developer. This analysis also applies to rivers, which are treated as navigable and subject to the same considerations as lakes.

Consider the rights of a private landowner who I’ll refer to as Joe Johnson. Joe and his wife recently purchased a house on Lake Maitland, which is a non-meandered lake. Every weekend, a couple of fishermen anchor their boat about twenty yards from Joe’s shoreline and spend much of the day fishing. Joe finds them annoying and doesn’t want people anchored and fishing near his property. A survey of Joe’s property was done in conjunction with his purchase of the property and he was given a copy. The survey depicts his lot as extending more than 20 yards into the lake from the shoreline. So, he gave me a call seeking advice on whether he could legally force fishermen to move their floating weekend retreat to somewhere beyond his property lines.

I remind Joe of our prior discussions regarding the language exceptions in the title policy. Title insurance policies generally will NOT insure the land below the ordinary high water line of lakes and rivers - even if the property has been deeded by the State of Florida - because of the overriding rights of the public to use the water above the land. These rights - to swim, boat, and fish in the waters of the lake - are called “riparian and littoral rights.” I also reminded Joe that there were two specific exceptions in his title policy that address both of these issues, and which exceptions are automatically contained in all title insurance policies for land situated on navigable water bodies. The first - “This policy does not insure beyond the ordinary high water line of Lake Maitland” - means that the title insurance company will not protect or enforce any of Joe’s ownership rights to use any portion of the land extending into the waterway. The second is that “riparian or littoral rights are not insured.” This means that the title policy does not guarantee Joe’s individual rights to fish, swim, or boat in the lake’s waters – even though he and his family, as well as other members of the general public, enjoy these recreational activities. It also is an acknowledgment that other members of the public may have the right to use these same waters adjacent to Joe’s property. In other words, as long as the fishermen are not harassing Joe, or intentionally blocking his way, there isn’t much he can do.

Although the results may not seem fair to Joe, it is the “public welfare” character of these waterways that controls. Furthermore, the rights to use these waters extend beyond other lot owners adjacent to the waterway to include the general public. As long as members of the general public use a public access route to reach the body of water, are entitled to enjoy these same waters at their leisure.

Public access routes may vary, but are typically provided through public parks maintained by a city or county government. The public is required to abide by the rules and regulations imposed by the governmental authority (e.g. speed limits, opening and closing times), and generally must respect the private character of the properties along the waterways. Access rights may also be through private grants of easement (usually given to present and all future owners of the benefited parcel). Subdivisions abutting waterways typically contain language on the plat granting all lot owners access to the waterway. Specific access locations are also normally depicted on the plat.

Many lakefront properties have boat docks that extend beyond the ordinary high water line and into the lake’s waters. For the reasons recited above, title insurance policies typically will not insure these dock areas. Permits must be granted by local governmental authorities to build or repair the boat docks (or to remove weeds, high grass, etc.). Failure to obtain these permits may result in fines and court orders to remove the improvements at considerable cost to the property owner.

Most of the land lying beneath the lakes and rivers throughout Florida is vested in the State of Florida, for the benefit of the general public. Even if the state has conveyed the land lying beneath the water to private individuals, the general public legally accessing those navigable waters will usually have the same rights to the use of the waters.

I advise Joe that, although he has every right to the exclusive use of the land lying above the ordinary high water line of his property, his usage of the waterway is not exclusive. It is shared by other members of the public who have obtained legal access to those same waters.

Visit our website for more information on this subject.

Frank Pohl founded Pohl & Short, P.A. based upon the belief that a high quality small commercial law firm was needed in the Orlando, Florida area as an alternative to the large commercial law firms. He still believes that client responsiveness and satisfaction has a place in a fast changing legal profession. Frank has been involved in the Central Florida community for more than twenty-five years. He has been a dedicated past board member of many local organizations over the years. Frank graduated magna cum laude with a B.G.S. Degree from the University of Miami in Coral Gables, Florida; attended the University College at the University of London as an undergraduate studying British literature and British history; obtained his Juris Doctorate Degree in 1979; and obtained a Masters of Law and Letters Degree (LL.M.) from New York University School of Law in 1980. Frank is a member of The Florida Bar, the California Bar, and the District of Columbia Court of Appeals. He is also admitted to the U.S. Supreme Court. He has served on the Orange County Bar Association Real Estate Committee and is a member of the The Florida Bar’s Real Property and Corporation and Business Law Section. He has also served on the Florida Bar Grievance Committee.

YE OLDE FLORIDA HOMESTEAD - PART II

Winter Park Home, July / August 2006

Everybody loves to save money. Surprisingly, the Florida constitution and statutes provide an excellent opportunity to own your home and save property taxes at the same time.

As discussed in the Real Estate Law column that appeared in the May/June issue, Florida homestead laws evolved to protect the family unit. In that column, we focused on the joinder / alienation provisions of the law. This column will cover the other two key aspects of the homestead statutes--protection from creditors and real property tax reductions.

In order for property to be characterized as homestead, the property owner must intend to use the property as his/her principal residence and physically reside on the property. Furthermore, homestead property is limited in size (but not in dollar amount) to one-half of an acre within the city’s limits, and up to 160 acres outside city limits, all of which must be contiguous.

The Homestead Exemption
To qualify for the homestead exemption, you must first own and reside on the property as of January 1st of the year in which you apply, and submit a formal application to the County Property Appraiser by February 28th of that calendar year. This application requires that you state under oath, that you are in fact residing on and will continue to reside on that property as your principal residence. Typically, if the deed is dated and notarized prior to January 1st, but not recorded until shortly after the 1st, the appraiser will treat the property as being owned by January 1st. Once the property owner has completed the filing process, the homeowner enjoys certain tax advantages and protections from creditors.

Tax Advantages
The homeowner receives an automatic $25,000 reduction in the assessor’s valuation of the property, thereby creating a reduction in the amount of the annual property taxes for the homestead property. In addition, once the property is characterized as homestead, the County cannot reappraise and increase the valuation of the property, for assessment purposes, more than 3 percent in any given year. Only homestead property enjoys this limitation.

Many people don’t realize that it is also possible for a husband and wife to have two separate homesteads. For example, Michael Jones separately owns and resides in a home located in Seminole County. Mary, his wife, also separately owns and resides in a home in Orange County. Each is entitled to file a separate homestead exemption. There are also many scenarios in which one or more unrelated people own property, but only one of them qualifies for the homestead exemption. If Michael Jones and Sam Smith jointly own property and only Michael resides on the property, Michael can claim the homestead exemption, but the 3 percent appraisal exemption will only apply to Michael’s share. The other half owned by Sam, isn’t exempt and is subject to taxation at the full valuation rate. This is true even if the County or the municipality allows the full $25,000 reduction in tax valuation of the property.


Protection from Creditors
The third important aspect of homestead law is the protection from creditors. This is the subject of constantly evolving law. According to the homestead laws, if you purchase property and immediately make it your homestead, the Florida Constitution provides that judgment creditors cannot take your property. Furthermore, any judgment lien against you cannot attach to your homestead property, nor to the proceeds of the sale of your homestead property (as long as those proceeds are used to purchase other homestead property). For instance, Michael has a $2 million judgment against him stemming from a car accident in which he was at fault. The judgment creditor cannot take or attach his homestead property. Although, proving that the property is his homestead may (but does not always) require a court order, with notice to all of his creditors.

If a court order is obtained, it must also be timely. An order dated January 5, 2005, for the sale of property in February of 2005 will not be sufficient if the original sale fell through and the property is back on the market for sale in January of 2006.

Not surprisingly, title companies are reluctant to insure a sale of property in which a $2 million judgment lien has been filed against the seller. The cost to defend a subsequent action by the judgment creditor, even if the defense is successful, far exceeds the amount of premium that the Title Company would receive for the transaction.

Public records are laden with homestead affidavits that attempt to avoid the impact of judgment liens on property. Generally, these affidavits have not been accepted by title insurance companies, even though there is some statutory authority to do so. Recently, title companies have become more flexible, permitting reliance on affidavits that comply with their guidelines for smaller judgments.

Certain forms of liens are superior to the Florida Constitutional protections and cannot be avoided by either an affidavit or a court order. Federal tax liens “trump” state law, and must always be satisfied. Homestead property can be taken to satisfy these obligations. Real property ad valorem taxes are also given the same priority.

Finally, consult with your legal advisor before taking any “creative” steps with your homestead real property. Asset protection is a specialized field of law, and proper advice will not only anticipate the insulation of your homestead property from creditors, but also will also factor in the evolving status of federal bankruptcy law.

Visit our website for more information on this subject.

Frank Pohl founded Pohl & Short, P.A. based upon the belief that a high quality small commercial law firm was needed in the Orlando, Florida area as an alternative to the large commercial law firms. He still believes that client responsiveness and satisfaction has a place in a fast changing legal profession. Frank has been involved in the Central Florida community for more than twenty-five years. He has been a dedicated past board member of many local organizations over the years. Frank graduated magna cum laude with a B.G.S. Degree from the University of Miami in Coral Gables, Florida; attended the University College at the University of London as an undergraduate studying British literature and British history; obtained his Juris Doctorate Degree in 1979; and obtained a Masters of Law and Letters Degree (LL.M.) from New York University School of Law in 1980. Frank is a member of The Florida Bar, the California Bar, and the District of Columbia Court of Appeals. He is also admitted to the U.S. Supreme Court. He has served on the Orange County Bar Association Real Estate Committee and is a member of the The Florida Bar’s Real Property and Corporation and Business Law Section. He has also served on the Florida Bar Grievance Committee.

YE OLDE FLORIDA HOMESTEAD

Winter Park Home, May / June, 2006

The early settlers used to homestead land by building a home, and staking the land boundaries. In present day Florida, we do things differently. To homestead property we first purchase the property, which has already been staked, and then we move in. If only this was all there is to the concept of homesteading, a word that is the source of more questions, and more confusion, than any other in Florida real estate law.

This scenario will give you a glimpse into the legal concept of homestead property: Charlie Hustle is in a high stakes poker game, and has a full house. Convinced he has a winner, Charlie bets the house--literally. Charlie, his wife Charming, and their twin 10-year old boys, all live in the house. Winn Takem tops Charlie with four 3s. Since he is the only one in title, Charlie signs a deed in front of two witnesses and a notary public (who just happens to be at the game), conveying the house to Takem who records the deed the following day. Ashamed, Charlie forgets to tell Charming what happened. Two weeks later, Charming is served with an eviction notice by the county sheriff. Charlie may be an idiot but Charming isn’t. She hires an attorney and gets the deed set aside. Why – because of the Florida homestead laws. Although the title was solely in Charlie’s name, Charming and the family still have their rights of homestead.

Homestead laws were created to protect the family unit, and revolve around the concept of intent. In order for property to be characterized as homestead, the property owner must both reside on the property and INTEND to reside on the property as his/her principal residence. Only individuals can get the benefit of our homestead law--corporations, partnerships, limited liability companies, and the like cannot apply nor qualify for homestead status. This means that if you buy a house in your corporation’s name, and reside on the property, you cannot obtain the benefits of Florida’s homestead laws. There is also a size limit applied to homestead--up to one-half of an acre within the limits of a municipality, and up to 160 acres outside of the city limits, all of which land must be contiguous.

There are three separate and distinct homestead perspectives to consider--alienation of homestead property, protection from creditors, and real property tax reductions. This article focuses on the joinder / alienation provisions. Protection from creditors and taxes will be presented in a later article.

The Florida Constitution requires that every deed, mortgage, or other transfer of an interest in homestead property be signed by both the husband and the wife, even if only one of them is in title. Imagine the frustration of Jim Jones, who is transferring from New York to Orlando and has signed a contract to purchase a home solely in his own name. He has had a loan approved by the bank and has been told by the bank officer that his wife won’t have to attend the closing. At the closing table he learns that he can’t complete the purchase of the property (thereby losing his rate lock on the mortgage) because his wife is on out of town on vacation and can’t be. Many lenders insist that they don’t need to have the wife to sign the mortgage. When it is explained to the lender (typically an out of state lender unfamiliar with Florida law) that the transaction cannot be insured without the wife’s signature, they have a different response to the question.

An equally frustrating situation is that of a buyer in the middle of an acrimonious divorce, whose spouse refuses to sign anything while they are still married. You can imagine the potential for some unscrupulous twisting of facts in order to make the transaction close. If someone other than the buyer’s spouse poses as the spouse and signs, then the buyer’s spouse can (and often does) have the deed set aside, or the mortgage negated, since the real spouse didn’t sign. This is true even if the property has been transferred a couple of times since the time of the defective transfer. Title Insurance claims do get filed over this exact scenario.

Equally disconcerting to property owners are the Constitutional limitations on devising the homestead by will. This body of law is complex and confusing. Simply stated, the law says that homestead property cannot be devised (transferred at death by a will) to anyone if the property owner has a minor child and spouse. In other words, the property must pass through the laws established by the Florida legislature. Additionally, if there are no minor children and there is a spouse, the only person you can devise the homestead property to is the spouse.

Many people try to bypass this limitation by transferring their property into a revocable trust. Unfortunately, there is case law that states this is not effective (if you are survived by spouse and/or minor child). The net effect will be the loss of time and the potential expense of a probate proceeding. This body of law is frequently misinterpreted by non-lawyers and lawyers alike. It is highly recommended that any estate planning involving homestead property include the counsel of an attorney familiar with Florida homestead law.

The definition of homestead, as presented here, is relatively simple and straightforward. Yet there are many court cases interpreting this law and, not surprisingly, often with different results. This article is not designed to guide you through all the various nuances and interpretations of Florida homestead law. Suffice it to say that you should always consult with your legal advisor before taking any creative steps with your homestead real property.

Visit our website for more information on this subject.

Frank Pohl founded Pohl & Short, P.A. based upon the belief that a high quality small commercial law firm was needed in the Orlando, Florida area as an alternative to the large commercial law firms. He still believes that client responsiveness and satisfaction has a place in a fast changing legal profession. Frank has been involved in the Central Florida community for more than twenty-five years. He has been a dedicated past board member of many local organizations over the years. Frank graduated magna cum laude with a B.G.S. Degree from the University of Miami in Coral Gables, Florida; attended the University College at the University of London as an undergraduate studying British literature and British history; obtained his Juris Doctorate Degree in 1979; and obtained a Masters of Law and Letters Degree (LL.M.) from New York University School of Law in 1980. Frank is a member of The Florida Bar, the California Bar, and the District of Columbia Court of Appeals. He is also admitted to the U.S. Supreme Court. He has served on the Orange County Bar Association Real Estate Committee and is a member of the The Florida Bar’s Real Property and Corporation and Business Law Section. He has also served on the Florida Bar Grievance Committee.

Rollins College - Featured Board Member

ROLLINGS COLLEGE AND CENTER FOR EVTREPRENEURSHIP ADMINISTRATION FEATURED BOARD MEMBER -

FRANK POHL
Founder, Pohl & Short, P.A.

The idea of starting a business was never far from the mind of Frank Pohl. He grew up surrounded by family members that started and built their own businesses. “I grew up in a family of business owners.” Once he decided to become an attorney, it didn’t take long for him to make the decision to start his own firm. “In the early nineties, I realized that there was an opportunity in the legal market place for a local business boutique law firm that could provide an alternative to the larger commercial law firms. I decided to move on the idea, open a new law firm, and give it a try.”

In the 7 years since then, Frank has built Pohl & Short into a respective law firm with over 15 associates and four main areas of business law including: Corporate Law, Commercial Litigation, Real Estate Law and a combination of Probate, Tax, Estate Planning, Trusts and Asset Protection Law. Their attention to detail and focus on the individual has given Pohl and Short tremendous success and an outstanding reputation in Central Florida.

As a successful entrepreneur, Frank Pohl knows the challenges and joys of owning your own business. “Managing people always seems to present the most difficult issues for most entrepreneurs no matter what the industry. Because our legal practice deals day in and day out with entrepreneurs, we have a unique perspective on watching other business owners deal with daily issues. Consistently, they tell us that it is the management of people that raises the big challenges. The most fun about starting a business is watching it grow over time through the efforts of those involved.”

The idea of “making it grow” was key in Frank’s decision to join the Center for Entrepreneurship Board of Advisors. Frank recognized the importance of entrepreneurship to the Central Florida economy and as a positive force in the development of Rollins students. “I joined the Board as a way to give something back to others and to help influence other to take risks.” And while risks are an integral part of the entrepreneur’s life, some things are better not left to chance. When looking to the future, Frank has a clear idea of how he would like to be remembered. His idea of a great legacy is “having a great family and being able to freely exercise a sense of humor.”

We appreciate Frank’s service on the Center Board of Advisors.

WHAT DO YOU DO WHEN THE SALE FALLS THROUGH?

Winter Park Home, March / April, 2006

Protecting your rights as a buyer through specific performance

Imagine yourself in this scenario: for weeks, or perhaps months, you have been negotiating the purchase of your dream home. You’ve signed the contract, secured financing, and are ready to close on the property. The morning of the closing, you get a call from the seller, who backs out of the deal. Perhaps the seller got a higher offer than the price you agreed upon in your contract, or the seller learned that comparable properties in the area recently closed for a price higher than your contract price. You have your heart set on purchasing this property.

What options do you have?

One avenue you may pursue is to sue the seller for specific performance. Specific performance of a land sale contract means that a court will require the seller to sell you the property for the contract price.

The first thing you must do as buyer seeking a ruling of specific performance is show that you have fulfilled all of your contractual obligations and met all conditions as set forth in the contract. This means you will need to prove that you are ready, willing, and able to perform your end of the transaction, which includes being financially able to purchase the property.

One term to look for in your land sale contract is a “time is of the essence” clause. This clause requires each party to perform his/her obligations within an agreed upon period of time. If a party does not perform within the specified timeframe, the general rule is that his rights under the contract will be void. Thus, if you as buyer had the obligation to secure financing by a certain date and are extremely late in doing so, a court may take that into consideration when deciding whether to grant specific performance.

You must also show that an award of the legal remedy (usually monetary damages) is inadequate. Establishing that money damages are inadequate for a land sale transaction is rather simple. Since all land is considered unique, money damages to a buyer of land is an inadequate remedy at law.

Another requirement that must be met in seeking specific performance is to show that enforcement by the court is feasible. With regard to feasibility, courts will typically find enforcement feasible when all parties and property at issue are located in the jurisdiction of the court where the buyer brings the action. In this situation, the court may transfer the property by court order if the seller refuses to comply.

Finally, of the seller / defendant claims that he or she has defenses, the plaintiff / buyer must defeat those defenses to prevail.

One advantage to filing a lawsuit when a seller backs out of a land sale contract is that in addition to your lawsuit, you may also file a notice of lis pendens on the property. A notice of lis pendens is a document recorded in the public records which puts the world on notice that the specified property is the subject of your lawsuit. Thus, if the seller sells the property to a third party, that third party is deemed to have notice of your lawsuit and is then purchasing the property subject to the outcome of your lawsuit.

Although it is up to the court to hear all the facts of your case and determine whether to grant specific performance in your favor, having a notice of lis pendens recorded in the public records will likely hamper the seller’s efforts in selling the property to a third party, who may not want to become embroiled in litigation. Cutting off the seller’s ability to sell the property to a third party purchaser may give you some leverage in settling your dispute outside of court. In short, filing a specific performance lawsuit may be enough to prompt the seller to honor his or her commitment.

In any event, you should consult an attorney if you are faced with a situation in which the sale falls through due to a seller’s failure to perform. The attorney can help clarify the steps necessary for obtaining a court ruling for specific performance and explore other options that may be more advantageous to you.

Visit our website for more information on this subject.

Frank Pohl founded Pohl & Short, P.A. based upon the belief that a high quality small commercial law firm was needed in the Orlando, Florida area as an alternative to the large commercial law firms. He still believes that client responsiveness and satisfaction has a place in a fast changing legal profession. Frank has been involved in the Central Florida community for more than twenty-five years. He has been a dedicated past board member of many local organizations over the years. Frank graduated magna cum laude with a B.G.S. Degree from the University of Miami in Coral Gables, Florida; attended the University College at the University of London as an undergraduate studying British literature and British history; obtained his Juris Doctorate Degree in 1979; and obtained a Masters of Law and Letters Degree (LL.M.) from New York University School of Law in 1980. Frank is a member of The Florida Bar, the California Bar, and the District of Columbia Court of Appeals. He is also admitted to the U.S. Supreme Court. He has served on the Orange County Bar Association Real Estate Committee and is a member of the The Florida Bar’s Real Property and Corporation and Business Law Section. He has also served on the Florida Bar Grievance Committee.