Residential Real Estate Property Issues
A real property transaction involving either a sale or a purchase of residential or commercial property is either the largest or one of the largest monetary transactions in which one becomes involved. Therefore the wisest course of action is always to retain a real estate attorney to advise you. The best time to retain a real estate attorney (or any attorney for that matter) is before you sign a contract. However, if you have already had a realtor prepare your contract—and this is quite typical in residential real estate transactions. You should still consider having your own attorney represent you at the closing; or at the least have him or her review the closing documents in advance of the closing. Since we are real estate attorneys, we usually want to prepare all the closing documents, such as the contract, closing statements, appropriate affidavits and compliance agreements in my office. We also want to have the mortgage lender send us any mortgage loan documents and loan monetary figures so that we can include them on the closing statements and then go over them with the folks who are borrowing the funds. We do this for both Sellers and Buyers since in our opinion, it just seems to work better that way.
If you are purchasing real property, we believe it is of the utmost importance to obtain title insurance, and this is true even if you are purchasing a new home that was built by the builder for you. It is the safe and secure way to purchase real estate. There can be outstanding claims or liens about which even the developer/builder may have no knowledge. Title insurance is the single most effective and least costly way to protect the owner of real property be it residential or commercial. We like to explain it this way: institutional mortgage lenders require what is known as a mortgagee title insurance policy as part of the due diligence they must perform prior to advancing funds. This is a type of title insurance policy that insures the mortgage lender that it has a valid mortgage and that it is prior to any other liens (other than those the lender has already taken into account). A mortgagee policy protects the lender’s mortgage but does not protect the landowner. So, if a mortgage lender requires a title policy, should that, in and of itself, not convince a buyer that he/she/they must have their own policy of title insurance? we think it certainly does.
Florida Homestead and The Save our Homes Cap
In the state of Florida, if you are purchasing property as your homestead, you will be entitled to receive the homestead exemption on the property. In order to have the homestead exemption, however, you must be a Florida resident. The homestead exemption means that the first $25,000 of the homestead’s assessed value is not subject to ad valorem real estate taxation. You must keep in mind that the homestead exemption is only available for those folks who reside in the property as their homestead.
Well, okay, what is the Save Our Homes Cap (SOH)? It’s a provision in the Florida Constitution that limits the increase in the annual assessment on homestead properties. The SOH limits the amount a homestead property can be valued for assessment purposes to no more than 3% a year. Simply put, the SOH just “caps” the amount upon which a homestead tax bill can be based. When that homestead is sold, SOH cap is removed and then the value for real estate tax purposes is increased to whatever the market value as determined by the tax appraiser’s office is as of January 1 of the year following the sale. WARNING: There is a “trap” for the unwary. I’ve seen deeds of homestead property prepared by attorneys who are licensed to practice law in Florida but who live in other states and really practice outside of Florida, but who claim that they understand Florida law. What happens if the attorney is not familiar with the SOH cap is that they go ahead and make the transfer into trust and a year later, the SOH cap is lifted. The proper thing to do until such time as uniform rules exist throughout the entire state of Florida is to check with the tax collector in the county where the homestead is located and make sure that any transfer into trust will not result in a loss of the SOH cap.