Commercial and Residential Real Estate Transactions

Commercial Real Estate Transactions

Commercial Real Property Issues

While many of the concepts are the same, there can be huge differences between commercial and residential real estate. Commercial real estate transactions can be far more diverse and wide-ranging than residential sales. There may be greater concerns about hazardous materials or zoning issues.  Concerns about Landlord/Tenant issues and there will always be questions about the suitability of the property’s location for your business needs. Furthermore, in many instances, you aren’t afforded the same consumer protections on a commercial real estate deal that may be available when you purchase a residence. Residential homebuyers are given greater protections against abusive lending practices than are business owners. Likewise, there are mandatory disclosures required in residential real estate matter that may or may not be required in a commercial transaction. As you navigate the complexities of commercial real estate, it is vital that you have at your side a firm with the insight and experience needed to protect your financial interests. With the involvement of lenders, landlords, tenants, developers, buyers and sellers, it is important that your representation has the insight necessary to oversee the entire process and anticipate any potential obstacles.  We work closely with clients in drafting and reviewing contract terms and conditions, leases, financial arrangements, easements and restrictions, loan provisions, liability clauses and other issues in commercial real estate transactions.

We often hear the question, why do I need an attorney if I am buying Title Insurance? Title insurance is nothing more than an insurance policy that provides assurance to interested parties that there’s good and marketable title to the property being insured. However, this never means that title insurance guarantees perfect title. As with all insurance, there are a number of different types of policies and endorsements. There are also many exceptions to title, which all tie back into information in the preliminary title report. These include specific exceptions listed on the property to be insured, as well as standard exceptions.  An attorney will review the title report with you and discuss any exceptions listed.  One standard exception, for example, is that the insurance will only be provided for exceptions to title that are reflected by the public records. Unless a special endorsement is obtained (which costs more money), there’s no obligation on the insurance company to insure against defects in title that would have been apparent from surveying or otherwise physically inspecting the property.

Commercial Real Estate Transactions in Florida

We can never recommend that a person or company purchase any commercial real estate in the state of Florida without first consulting with a real estate attorney.  If it is true that in the purchase of real property there are substantial rewards for the investor, it is also true that it has substantial risks.  It is important to confirm that the zoning really is what it is said to be and this is equally important, that the zoning is in line with the city’s or county’s or state’s comprehensive growth plans.

If you are purchasing a commercial building, you need to know the status of both the zoning and the comprehensive plan in the event the property is destroyed by fire or other hazard, such as a hurricane.  Can you rebuild it?  Do you have to comply with new and more restrictive building or land use codes?  Are there hazardous substances underneath the ground or underneath neighboring lands that can seriously impact on the ability to develop or re-develop the property?  Perhaps, you wish to purchase existing rental properties and convert them into a condominium or a homeowners association (there are differences).

Will the zoning and comprehensive plan allow that?  What steps have to be taken in order to formulate the plans you might have for converting to condominium or homeowners association ownership?  Is it economically feasible to do what has to be done?  Are there asset protection methods of holding title to the property?  All of these and much more should be examined and the best way to start is to retain an experienced real estate attorney who can look into many of the issues and can direct you to where to find those answers that he is not able to handle for you.

Residential Real Estate Transactions

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 residential 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.

The owner of this website has made a commitment to accessibility and inclusion, please report any problems that you encounter using the contact form on this website. This site uses the WP ADA Compliance Check plugin to enhance accessibility.