If a Contract Is Breached, Who Pays the Fees If We Go to Court?
Video Summary
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.
- Published in Estate Planning, Real Estate, Videos
What Is Due On a Sale Clause?
Video Summary
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.
- Published in Real Estate, Real Estate - Foreclosure, Videos
Are You Required to Go To Court If You Breach A Contract?
Video Summary
Are you required to go to court if you breach a real estate contract? No. The standard contract that is used has been approved by the Florida Bar and the Board of Realtors, and if there’s a dispute over the deposit, it provides that the parties are to go to mediation. I’ve found in my practice that usually doesn’t work when the parties aren’t in agreement, and usually the realtors try and negotiate a settlement as far as the deposit’s concerned, where they split the deposit, and each party gets a portion of it. If that doesn’t happen and the parties can’t agree, then either party is in a position to file. Go to small claims court if the deposit’s less than $8,000 and sue to recover their deposit one way or the other. If the buyer wants to force the seller to sell him the property, well then the buyer must file an action in small file, an action for specific performance in order to require the seller to sell them the property. If it’s an escrow dispute and they can’t decide who’s to receive the deposit, if the deposit is held by a realtor, they can send an opinion or ask the Florida Board of Realtors to give them opinion as to who they should disperse it to. If the deposit is held by a title company or an attorney and the parties can’t agree, the attorney or title company’s recourse is to file an action to what they call inter plead the deposit. That’s where they say, well, look, I don’t have any interest in this deposit, so we’re going to put the money in the register of the court, and then the parties can sue each other, whatever, to determine who’s entitled to the money, but that relieves the escrow agent of any responsibility as far as dispersing it. The downside of this is if it’s a small deposit, the title company or attorney when they file this plea or action asks that their attorney fees and costs be deducted from the deposit. Well, that usually costs two or $3,000, so the deposit is two or $3,000. Well, all the monies used up just filing the inter pleater, so hopefully you can work out any escrow disputes that there may be without having to go to court. But if the parties can’t ever agree or settle, we’ll, then yes, then they’ll have to go to court to sue for recover the deposit or to force get the deposit if the buyer breached. If you have any questions, give me a call at (727) 847-2288.
- Published in Real Estate, Videos
I Bought Land That’s Now Landlocked Due to a Dispute Between Neighbors?
Video Summary
I bought land that’s now landlocked due to a dispute between neighbors to the south and the north walking the road on both sides. What can I do? Well, the first thing you need to do is contact a real estate attorney to check into this. Whenever you go to see the attorney, you need to take with you the closing documents that you received when you purchased the property to see if you have a title insurance policy. The title insurance policy guarantees you legal access to the property. The attorney would then review that and then he will need to determine if this easement as to whether or not it exists. And he’ll probably have to order title searches on both your neighbor’s property to the north and the south to see about getting a copy of this easement once he gets to see about the easement, the width, and its use and why it’s established.
And see if your property is the property that was intended to access or be an easement to for ingress and egress. And if it was, well, then you have a cause of action against the property owners who are blocking the easement if it was intended for your use. If however, you did not have an easement to your property and you had title insurance, you have a claim against their titled insurance company for them to see about gaining access for you. In the event that you don’t have titled insurance and you don’t have an easement, there are a couple of statu whereby you can file an action for a statutory way of necessity, and that’s where you would have to buy the property to the nearest route, to the nearest county or state road to gain access. It’s a little bit complicated as far as that’s concerned, but if you have any questions about it, you can give me a call at (727) 847-2288.
- Published in Real Estate, Videos