Practice Areas and Legal Definitions

Real Estate Negotiations:
In major financial transactions, especially those involving real estate properties, it’s important to have a knowledgeable negotiator working for you, one who knows the law and whose loyalty to you is undivided.  Real estate brokers and agents depend on sales commissions for their livelihood.  If the sale does not occur they receive nothing for their time and energy, and this can create a conflict of interest.  You need someone representing you who is less concerned about a particular sale going through than with making certain your legal rights are protected.

Title Clearance Issues:
When the title search discloses problems the seller is then faced with the problem of clearing the title defects.  The buyer must be concerned with the terms of the title policy.  As with any other insurance policy, title insurance documents are usually packed with disclaimers of one kind or another, all in highly technical real estate jargon and legalese, and all set forth in the tiniest of fine print.  Failure to fully understand the import of a particular clause or disclaimer in the policy can result in financial consequences at some later date, when it may be too late to do anything about it.  If you find things in the title commitment you don’t understand, your real estate attorney can explain them to you and can also point out to you any items that need to be challenged and resolved.  Given the amount of money involved in modern real estate transactions, it is critical to make certain that title problems are not going to make the deal a disaster.

Quiet Title Matters:
Sometimes a particular piece of real property has title defects of such significance that no sale or other transfer of ownership can occur until they are resolved.  A frequent method of clearing title defects is a lawsuit called a “Quiet Title” action.  In the Quiet Title action, the Court would receive and consider evidence on the issue, and if satisfied that the claim or position had been discharged or found to be without merit, , would issue an order dissolving (removing) the claim.

Mechanic’s Liens:
When doing building construction or repairs, building contractors often utilize a legal device called a “mechanics lien” as a means of making certain they will be paid for their labor and materials.  The creation of a mechanic’s lien requires written notice to the owner of the property and other formal requirements, and its enforcement is subject to strict statutory rules. Once a valid mechanic’s lien attaches to the property, however, it operates as a claim against the property which, if it remains unpaid, can ultimately result in foreclosure proceedings.

Real Estate Document Preparation:
Whatever may be said during real estate negotiations, whatever promises may have been made, it is the final written documents that will control what happens.  Many of the closing documents involve the completion of pre-printed forms, but sometimes the details of a particular transaction require modification of a form to provide adequate protection.  Your real estate attorney can either prepare all of the documents, or can review the documents that have been prepared, explain them to you and suggest changes, as needed, for your benefit.

Closing Attorney Representation:
The majority of transactions are concluded routinely, with no unanticipated problems and as it may well appear after the fact, no need for legal representation during the closing.  There is no legal requirement for representation by counsel at the closing, but most lenders and prudent investors will do so.  It is at closing that critical disputes often arise concerning the language in a particular clause or some other technical aspect of the transaction.  A person who goes to closing without an attorney does so at his own risk.

Sales Breach Issues:
Once a written agreement has been executed by both parties to a real estate transaction its provisions are legally binding.  Which judicial remedies, if any, may be available for the breach of the agreement depends on a variety of factors.  There may, for example, be remedies available to the Buyer if the Seller breaches that are not available to the Seller, if the Buyer is the breaching party.

Land Development Issues:
Land development projects grow more difficult and complex with each passing year.  Your real estate lawyer can guide you through the labyrinth of zoning regulations, environmental agency requirements, building, fire and safety codes and the various other requirements for doing business in this complicated field of real estate.

Landlord/Tenant Issues:
As with any other agreement, if one side fails to perform obligations under a lease, the other side may bring a lawsuit to enforce the obligations.  The most common cause of litigation between Landlord and Tenant involves the non-payment of rent.  Florida law tries to provide a speedy legal remedy for landlords, featuring a sharp reduction in the time permitted for a defendant to respond, and giving the case preference over most other types of cases on the court calendar for an early hearing date.  

In many ways, Unlawful Detainer actions are tilted, procedurally, in favor of the landlord over the tenant.  Because of this, Courts are extremely strict in the enforcement of the landlord’s procedural obligations.  A very slight technical violation on the part of the landlord can cause an Unlawful Detainer action to be dismissed by the Court. It can be re-filed, of course, but the unpaid rent continues to mount while that is being done.

Foreclosure Issues:
When mortgage payments fall behind, the lender may ultimately take steps to foreclose.  Sometimes the best course for the borrower is to seek temporary relief in the United States Bankruptcy Court.  Since the mortgage is a “secured” debt, it cannot be discharged in bankruptcy.  The filing of a bankruptcy petition triggers an automatic federal court order temporarily staying (suspending) any pending foreclosure sale.  With the additional time provided by the stay, the defaulting borrower can often make arraignments to sell the real property for a much higher price than would be obtained in a foreclosure sale.

Essentially, a foreclosure sale involves sale of the real estate at public auction.  The proceeds of the sale are then applied against the debt owed on the mortgage.  Any funds remaining after the mortgage (and the foreclosure costs) are paid will be transferred to the defaulting borrower.  What happens when the proceeds of the auction sale are insufficient to pay off the mortgage and/or the foreclosure costs depends on the law where the property is located.

Eminent Domain Proceedings:
Eminent Domain proceedings are used by governmental agencies to acquire real estate (even when the owner doesn’t want to sell it) for use in a project of some kind for the general public benefit.  A recent decision by the United States Supreme Court has greatly expanded the discretion of state and local governments to seize property, even when they do so for the benefit of a private company, if they feel the project contemplated by the private company will benefit the public.  In mounting a defense to an eminent domain action, the landowner can resist the seizure itself, and can also challenge the dollar amount the agency is willing to pay for the land.  The landowner in an eminent domain proceeding is entitled to the fair market value of the land.

1031 Exchanges:
Internal Revenue Service Code §1031 provides a means for deferring the capital gains tax consequences of a real estate transaction when the proceeds of sale from one transaction are to be promptly reinvested in another similar type property.  The key word here is “deferral".  What happens is that the tax basis of the old property is transferred to the new, so that when the new property is ultimately sold, the tax will be due.  Of course, if the second property is also sold under a 1031 exchange, the tax will be deferred yet again.

Zoning & Land Use Issues:
Zoning and land use laws come into play in every real estate development, whether large or small.  Before buying real estate property or making major improvements to property you currently own, it is absolutely essential that you know about and understand the existing zoning and land use restrictions.

As a general rule, specified land uses are compatible.  You cannot, for example, put in a dairy herd, a shopping mall or an office building on land zoned for residential use.  It is sometimes possible to persuade local authorities to change the zoning for a particular area, but it can be very difficult, very expensive and it can take a long time.  In some cases it is possible to secure a zoning variance.  A variance is in the nature of an “exemption” for the particular parcel of real estate, from a particular zoning requirement.  Zoning changes and variances both involve extremely complex and difficult legal and political skills and often require public hearings before governmental agencies.

Condominium Conversions:
The upsurge in land values in recent years has contributed to the growing popularity of condominium living.  More and more people, especially first time home buyers and new real estate investors have turned to condominiums for their first real estate investment.  As the cost of building materials and construction labor has increased, so did the interest in the conversion of mobile home parks and apartment buildings into condominiums or cooperative corporations.  Condominium conversions can be extremely profitable, but they are long-term projects, sharply regulated by state and local legislation.  They are also subject to swift changes when the mortgage market goes sour, so it is important to be extremely cautious about these ventures and to have an escape plan.

Condominium Association Matters Including Common Area Fee Recovery:
While Condominium Associations are autonomous, they must comply with state and federal law and with the provisions of their own bylaws.  A qualified real estate lawyer can provide timely and useful advice to Condominium Associations so that they may accomplish this purpose.  Association officers can be held individually responsible if the Association fails to comply with the law.  Condominium Association should be managed by professional managers and not dependent on persons with little experience.

If you or someone you know in Florida needs the assistance of an experienced Orlando Real Estate Attorney, call Pierce & Associates today at 866-641-0870, or complete the contact form provided on this site to schedule your initial consultation.

If you or someone you know in Florida needs the assistance of an experienced Orlando Real Estate Attorney, call Pierce & Associates today at 866-641-0870, or complete the contact form provided on this site to schedule your initial consultation.

ADDRESS OF THE FIRM:
Pierce & Associates
800 North Ferncreek Avenue
Orlando, FL 32803
Telephone: 866-641-0870
Fax: 407-898-9321

MEMBERS OF THE FIRM:

John G. Pierce

EDUCATION:

• University of Florida College of Law, Gainesville, Florida, 1965, J.D., Doctor of Jurisprudence
  • Honors: Summa Cum Laude
  • Honors: Order of the Coif
• University of Florida, Gainesville, Florida, 1959, B.S.Ch.E., Bachelor of Science in Chemical Engineering
  

JURISDICTIONS LICENSED IN:

• Florida
• U.S. Federal Court

PROFESSIONAL MEMBERSHIPS:
Mr. Pierce is a member of the Orange County Bar Association, the Florida Bar Association and the American Bar Association. He is a member of the Corporations and Securities Committee of the Florida Bar.  In addition, Mr. Pierce is a licensed real estate broker, a member of the Orlando Regional Board of Realtors, the National Association of Realtors and a licensed mortgage broker.  He has been included in Who’s Who in America, Who’s Who in American Law and Who’s Who in Real Estate and Development Industries. He is also a member of the Association of Trial Lawyers of America, Real Property, Probate and Trust Law, and Business Law sections of the Florida Bar.  Mr. Pierce and Mr. Fenner are both "AV" rated in Martindale-Hubbell.


Stewart D. Fenner, Jr.

EDUCATION:

• Michigan State University, Detroit College of Law, East Lansing, Michigan, 1969, J.D.
• Miami University, Miami, Florida, 1966
• Northwestern University, 1970, P.A.

JURISDICTIONS LICENSED IN:

• Florida
• Michigan
• U.S. District Court of Eastern Michigan
• U.S. District Court of Western Michigan

PROFESSIONAL MEMBERSHIPS:

• Orange County Bar Association
• The Florida Bar
• State Bar of Michigan
• Member of the Real Property, Probate and Trust Law, Business and Trial Lawyer section of the Florida Bar