What Can I Do If a Seller Fails to Disclose Something?

 

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What can I do if a seller fails to disclose a defect in the home that I’m purchasing? Under our Florida law, the seller is required to disclose any facts that may materially affect the value of the property that are not readily observable. This is called a latent defect, and that’s what the Florida Supreme Court found as what they call a tort, and that is the responsibility of a seller to disclose that only on residential transactions, not on commercial transactions. In addition, the standard contract that is used for residential transactions, which has been approved by the Florida Bar and also the Board of Realtors, it provides in here that you are required to disclose any matters that may material affect the value of the property that are not readily observable. In addition to that, the many times the realtors have a seller filled out a seller disclosure form, which is a questionnaire as far as that’s concerned.
So if they failed to disclose that, well, that would be what they call affirmative fraud. So there are three avenues which you could pursue if a seller failed to disclose a defect is one under tort law, which is the case law in Florida. Two is the contract which reprise, and three is if it was not disclosed on the form, your remedy is to ask that the residential illustrate transaction be set aside and you get your money back and you give ’em back the property you have one year from the date of closing to do that. Otherwise, there’s a four year statute of limitations as far as being able to bring this action from the time you discover this defect, one of the big components that you have to prove is the seller knew of the defect. And so just because there’s a defect, if it wasn’t something that you could show the seller knew about, well they came very well, disclose something that they didn’t know. Also what must they disclose. There’s any sorts of things other than just the particular property itself as far as the physical aspects of it as to whether what has to be disclosed. So if you have any questions about this, give me a call at (727) 847-2288.

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If I Leave Someone Money in My Will Can It Be Paid From a Joint Account?

 

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If I leave someone money in my Will, can it be paid from a joint account? The answer is no. It cannot be paid from a joint account. A joint account has a signature card which says who owns the account upon whenever someone passes away the Florida law is the joint accounts will automatically go to the co-owner of the account or both parties on the account. So know that you can only request that and your will that someone pay that money out of a joint account, but that’s not legally binding and know the executor has no control over a joint account. An executor, in order to pay out devices can only pay those from assets or title in the decedent’s name alone. They’re in a probate proceeding. If there are no assets in a probate proceeding and they’re all jointly held, there is no probate, there’s no executor and all the assets passed without probate to whoever the join owner is or the designated beneficiary of the various accounts. If you have any questions, give me a call at (727) 847-2288.

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If a Contract Is Breached, Who Pays the Fees If We Go to Court?

 

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If a contract is breached, who pays the attorney fees? Well, first off, you have to look at the contract, and if it’s the standard real estate contract it provides in there, if suit is filed, then the prevailing party, whoever wins, is the one that is entitled to get an award of attorney fees. Now, receiving an award of attorney fees and being paid, your attorney fees are two different things because number one, if it’s a judgment and you receive an award of attorney fees because you’re the prevailing party along with whatever other monies you recover from the other party, well then you still have to go about collecting it. So being paid and being entitled to them are two different things, and that it’s difficult to collect money here in Florida since people’s houses are protected from judgment creditors. And also, if you’re going to be talking to an attorney, you’re going to have to advance the fees to the attorney to bring the lawsuit. So you’re going to be out the money and then he will see about getting you your fees included in your judgment, and then you need to see about collecting them. So getting paid and being entitled to those attorney fees are two different things. But hopefully that answered your question. And if you have any questions, give me a call at (727) 847-2288.

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What CANNOT Be Held in Trust?

 

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What cannot be held in trust? Well, I think just about everything can be held in trust, particularly all titled assets. If you’re dealing with a lender, a trust company, or a bank that serves as a trustee, or for that matter, any professional trustee or trustee, they may have some reservations about holding real estate, particularly vacant real estate in trust, having it in the trust since if there’s an environmental problem, there may be some question about whether the trustee then becomes liable for the environmental cleanup. So that’s always a question. Some of the other assets that are problematic, I don’t know that if you have cryptocurrency, they don’t title those. That’s simply numeric, and that’s all done through a wallet. So that would be another asset that I don’t know that you would be able to put in the trust. And so the other assets, which are problematic would be if you have gold, they can’t be specifically identified. And now how does the trustee do that as far as, I guess they could hold it, but would probably want to liquidate it to make it more accountable as far as that’s concerned, rather than having to safeguard it. So, there’s a few examples on items that are assets that may not be able to be held in trust, but certainly just about all titled assets can be titled in the name of the trustee for a particular trust, and of course, be governed by the provisions of the trust documents. If you have any questions, give me a call at (727) 847-2288.

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What Is Due On a Sale Clause?

 

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What is the due on sale clause? This is a clause that is found in almost every residential mortgage, particularly if it’s from a lending institution, a bank, or whoever gives you a 30-year fixed trade mortgage, and is in almost all even owner financing mortgages. And it says that if you transfer the property that you have a mortgage that you mortgage, then the loan, the mortgage secures, becomes due and payable and you must pay that loan off. In other words, it’s non assumable. You can’t let some buyer just take over your payments because it becomes due and payable. So that’s where they get the due on sale clause is really a due on transfer clause. Now, I will say that with the commercial lenders that if, or the regular residential mortgages, if you transfer the property, they have not been, I’ve seen very few of them that have called the loan due and payable if the mortgage payments have been being made. If they get their payments, they haven’t been enforcing the due on sale clause in commercial mortgages. I don’t know that you’ll have that kind of luck, but that is what a due on sale clause is. I’m getting ready to file two foreclosure actions, and that’s not only did it not make the payments, they also transferred the property. So that’s a default under the mortgage and we’re accelerating the amount of money owed. Under the note, if you have any questions, give me a call at (727) 847-2288.

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