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Wednesday, May 31, 2017

Jones Act Claim vs. Maritime Injury Claim



Jones Act Claim vs. Maritime Injury Claim

      The Jones Act is a comprehensive federal law passed by Congress in 1920 to protect United States ships and shipping interests from foreign competition. Among its many provisions, the Jones Act creates special rights for injured seamen.
      Title 46 of U.S. Code §30104 of the Jones Act is the provision which allows an injured seaman to bring a civil action against his employer if the seaman was acting within the courseand scope of his employment as a crewmember. If a seaman is injured as a result of the negligence of his employer the employer faces liability for the seaman’s injuries. In contrast, under state workers’ compensation schemes employees are generally prohibited from bringing lawsuits against employers for injuries caused by employer negligence.
     Who is eligible to file a Jones Act claim? Only a “seaman.” Under the statute, a “seaman” is defined as an employee whose duties contribute to the function of a vessel in navigation or accomplishment of its mission, and the employee’s connection to the vessel must be substantial. For example, if you were hired by a freighter owner to be ship’s engineer for an island cruise and you were injured aboard the freighter, you would qualify as a seaman. However, if you were the employee of an electronics firm that installed an electronics package on the freighter while it was in port you would not be qualify.
     Another unique feature of the Jones Act is that it allows for comparative negligence, which means that your own negligence will merely reduce your damage award proportionately. For example, many state laws prohibit an injured person from recovering against another if his or her own negligence was a partial cause of the injury. In a Jones Act claim however, if your negligence was determined to be 60 percent responsible for the cause of action accident and your employer is found to be 40 percent at fault, you may still recover 40 percent of your damages against your employer.
     There is a common misconception that “maintenance and cure” is somehow connected to a Jones Act claim. “Maintenance and cure” however is a completely separate right from a Jones Act claim. “Maintenance and cure” guarantees injured seamen receive medical care, treatment and support during convalescence. Seamen are entitled to maintenance payments until they have reached the point of maximum recovery. In order to be entitled to maintenance and cure, a seaman must only prove his injury occurred while employed on a vessel and was not caused by willful misbehavior.
     Unseaworthiness is yet another type of maritime injury claim. Unseaworthiness however is not a statutorily created remedy, but is a common law right to damages which arises when an unseaworthy condition on the vessel causes injuries. Unseaworthiness claims are not just available to seamen, but are also available to passengers as well. For example, if an injury occurs to a seaman or passenger as a result of poorly maintained or worn out equipment there is likely an unseaworthiness claim available.
     Regardless of the specific type of maritime claim, the basic process to be followed should be: 

1) Report any Injury no matter how insignificant if you there is any chance you might miss work to the captain or supervisor as soon as possible. If you don’t, you risk employers and more importantly insurers, assuming you were not really hurt.

2) You will be asked to fill out an accident report by your company Unless you are on medication or not capable of accurately filling out the report go ahead and do so, but don’t be afraid to tell your employer you are not able to do so. In the report section that asks who was at fault, if you do not specify the company was at fault, you will have a problem pursuing a Jones Act claim later. At worst, if you hope to be re-hired you should at least specify you are not sure who was at fault.
3) If you have significant injuries, you may be asked to give a statement to an insurer. Do your
best to avoid giving any such statement, at least until you decide if your injuries are significant enough to where you will need to hire a lawyer.

4) Get medical treatment as soon as possible. If you cannot obtain adequate medical treatment aboard the vessel, the ship should consult with a physician by phone or radio, and helicopter you out if need be. If you are in a foreign port you must be given proper medical treatment and sent home if necessary.

5) Do not miss doctor’s appointments and make sure you follow all of the doctor’s orders, and make sure not to miss any appointments. Don’t be surprised if you find out an insurance investigator is following you around taking pictures and videos trying to show you are doing something inconsistent with your doctor’s orders

6) Decide whether you need to hire a lawyer. As a general rule, you have no choice but to hire a lawyer if you have a Jones Act case, or if your maintenance and cure is not being paid, or if you can’t get medical treatment, or if your injuries are more than $15-20,000.

Tuesday, April 25, 2017

YES! YOU REALLY DO NEED BOAT INSURANCE


YES! YOU REALLY DO NEED BOAT INSURANCE

     Florida is the #1 boating state in the U.S. by any metric.  With warm weather most of the year, Florida has more than a million registered boats according to the National Marine Manufacturer’s Association.   This does not include the many, many thousands more unregistered vessels or transient vessels that pass through state waters every year.   Considering the sheer numbers of boats alone, it shouldn’t be surprising, and the statistics will tell you, more boats on the water means more boating accidents

     For anyone who owns a boat in Florida the magnitude of the accident
risk becomes apparent as soon as you reach the boat ramp for your first 4th of July weekend, Labor Day weekend or Memorial Day weekend.  On these busiest boating weekends of the year, boat ramps and waterways are packed.  On these heavy boating weekends to say the least, there is a broad spectrum of  competence of vessel operators ranging from true experts to first time operators.  With extreme differences in the competency of vessel operators anyone, even the most seasoned navigators, can easily find themselves in the midst of a bad event if they are in the wrong place, at the wrong time, with the wrong person.




     With the risk so apparent, the need for boat insurance  would seem obvious.  However, one of the most frequently asked questions we get when working on the purchase or sale of any vessel is "do I really need boat insurance?". 

YES!!!!!  

     Let me be clear.  Everyone who owns a boat needs to have boat insurance!

     Even though boat insurance is not required here in the state of Florida (like automobile insurance)  banks holding your boat loan require it; marinas storing your boat require it; and many boating events are now beginning to require proof of insurance for participation. And before you ask, no, your homeowners policy does not provide any meaningful insurance coverage for your boat.  For instance, homeowners policies do not contemplate coverage issues like salvage, wreck removal, or pollution liability.

     Here are just some of the main reasons every boat owner needs adequate insurance for their vessel:
  • Accidents.  With more than a million boats in Florida, and with operators having varying degrees of competence, accidents will happen.  Some are minor, but the truth is that many accidents every year cause serious injuries, and even death. Vessel insurance can off-set medical bills and other property damage.
  • Litigation.  Lawsuits arise in many different circumstances.  Passenger injuries, injuries to other boaters, collisions, salvage claims, storms, fire, etc., all can lead to litigation  Without vessel insurance you are left to fend for yourself in a lawsuit and you will undoubtedly spend more in one lawsuit than you would for years of boaters insurance.
  • Theft. Boat insurance can help cover the cost of replacing your boat if it, or the engine is ever stolen.
  • Property damage. Boat insurance can cover repairs and/or replacement if your boat is damaged in a storm, or by vandalism. 
  • Unknown events.  If your boat is moored at a dock slip, or sitting idly in a storage facility, there is still a chance your boat could be damaged by lightning or another boat crashing in to it or someone could be injured as the result of some freak accident when you are not around.  Boat insurance can protect you even if a loss occurs when you are not using the boat.
     Without insurance you face a terrible risk of losing your investment (ie. your boat) and perhaps a significant chunk of your other personal assets if you are involved in litigation resulting from an accident or other bad event.

     So how do you know you are buying the right insurance? Boat insurance policies are normally flexible and can be tailored to your needs to ensure you get the right policy at the right price.   The broadest policies available are all-risk policies.  These policies usually include coverage for losses due to specific perils such as fire or sinking or failed parts.  

     Liability only policies are normally much less expensive since they provide no coverage for damage to your boat, but usually only provide coverage for liability to others.  Liability only policies are frequently the best choice for vessels that are not worth that much.

     Agreed value policies give you the option to insure your boat for an agreed amount in the event of a total loss, while actual cash value policies do the same but generally provide a lower payout.

    No matter what type of policy you choose, be certain you understand what your boat insurance covers and what it doesn’t cover.  Does your policy cover your trailer? Your electronics? Your outboard motor? Towing AND salvage? (there is a BIG difference) Your fishing equipment? Your coolers? What are your navigational limits? Do you get a credit storing your vessel over the winter? Are you covered for anyone, including children, operating your vessel?

     At the end of the day the reasons for buying boat insurance are not that different from the reasons for buying homeowners insurance.  Yes, chances are good your house is not going to burn down, your valuables won’t be stolen in a robbery, your house won’t be washed away in a flood, but there’s still a chance something COULD happen.  The same principle applies to your boat.  Something COULD (and probably will) happen and when it does hopefully you will be calling your insurance company to file a claim, instead of calling our office to find out what you can do to protect yourself because you didn’t buy vessel insurance.   


Monday, December 26, 2016

3 Reasons To Fear the Quitclaim Deed

3 Reasons To Fear the Quitclaim Deed


Title to real property is conveyed by a deed. A real estate deed is a written and signed legal instrument that transfers the ownership of real property from one owner to another.  The “Grantor” on a deed is the “seller” or current title holder of the property, the “Grantee” on a deed is the buyer, or person to whom title is being transferred.

In Florida, there are three basic types of deeds, each of which conveys a different level of protection for the buyer. “Quitclaim deeds”, “Warranty deeds” and “specialized deeds”.  Warranty deeds provide the highest level of buyer protection, while quitclaim deeds provide the least.  Because quitclaim deeds offer such limited buyer protection, it's important to understand exactly what you're getting when you take title via a quitclaim deed. Here, five things to watch:

1.        No Guarantees
The overwhelming problem with quitclaim deeds is there are no guarantees by the seller.  In other words, the buyer is receiving virtually no assurances the seller is delivering good clear title to the property.   Furthermore, quitclaim deeds only transfer the ownership rights held by the seller.  Why is this important?  Since a quitclaim deed only transfers the rights owned by the seller, in a perfectly legal transaction, a seller could conceivably “sell” the Brooklyn Bridge a buyer via quitclaim deed.  In this instance, the buyer would receive nothing because the seller holds no interest in the bridge.  For this reason, quitclaim deeds are seldom used in real estate transactions where money is changing hands.

2.       Limited Uses
The main instances where a quitclaim deed might be appropriate is when there is a transfer property with no money involved, such as from a parent to an adult child, between siblings or when a property owner gets married and wants to add his or her spouse to the title.  Quitclaim deeds are therefore most commonly used when the parties know each other, and are more willing to accept the lack of buyer protection.  However, it cannot be stressed strongly enough that even where a quitclaim deed might be appropriate, the quitclaim still must be prepared and executed correctly.  For instance, one of the many issues with quitclaim deeds occurs when a parent who holds as trustee, conveys the property to an adult child via quitclaim deed.  If the quitclaim deed does not clearly specify the property is being transferred by the parent individually, and as trustee of the trust, there will almost assuredly be title problems down the line when the child goes to sell the property.
The other appropriate use of quitclaim deeds is to cure title defects, such as a name that has been misspelled in a prior deed.  

3.        Never used when a mortgage is involved
Since quitclaim deeds are almost never used where money is changing hands, they are never used when a mortgage is involved.  Lenders require complete assurance and guarantees that buyer holds good and clear title to the property in question, thus lenders always require warranty deeds.  Furthermore, many people do not recognize that they cannot remove themselves from a mortgage simply by executing quitclaim deed.  In most instances, lenders will not agree to remove anyone from a mortgage without payment in full.  In addition, most mortgages contain clauses prohibiting such transfers thus by executing a quitclaim deed you subject yourself and your “buyer” to a potential foreclosure action.

The Bottom Line

Quitclaim deeds are not the be all and end all, but they do have a legitimate purpose.  They provide a valid and legal means of conveyance that can convey title as effectively as a warranty deed if and only if, the grantor has good title.  However, quitclaim deeds have also been called “the problem children of the real estate world” for the problems they cause unsuspecting buyers. Regardless of whether you are taking title under a quitclaim deed or warranty deed, the truth is that no real estate transaction is simple.  In order to protect yourself and the person receiving title, when using a quitclaim deed you should always consult with the real estate lawyer to guide you through the issues involved.  As a general rule, the cost of assuring your transaction is done properly is very minimal compared the cost which the buyer will incur to rectify a title problem created by a bad quitclaim deed.

Monday, October 24, 2016

10 Reasons Waterfront Property Buyers and Sellers Need a Real Estate Lawyer

10 Reasons Waterfront Property Buyers and Sellers
 
Waterfront Property issues?
Buying and selling waterfront properties can be a confusing path to navigate.  If you are thinking of buying or selling property that borders a body of water, you must understand the purchase and sale of waterfront property involves more complex issues than purchasing property which is not waterfront.  The added complexity of waterfront property normally centers around the location of the waterline and riparian rights.   An attorney with experience in riparian rights and waterfront real estate can provide you with invaluable counsel regarding whether your land is really waterfront as advertised, whether others may have rights to use the land between your property and the water's edge or whether someone besides the State of Florida owns the submerged land you want to put your dock on.
          Significant issues to consider when buying or selling waterfront property include:
  1. Does the property really extend to the water's edge?  You might think this is a dumb question, but I cannot tell you how many people have been in my office with “waterfront property” that isn’t really waterfront property.  Your deed only conveys the property described in the legal description.  In many instances, we find filled lands in between the waterline and the platted or surveyed lot lines.  Or, in less frequent instances, we find old easements, dedications, walkways etc.  If the property being conveyed does not extend to the waterline for any of these reasons, you may not have “waterfront property”.
  2. Does someone other than the State own the submerged land adjacent to your waterfront property?  The State of Florida owns the vast majority of the submerged lands throughout Florida.  However, it is not uncommon to find instances where a third party owns the bottom land immediately adjacent to waterfront property.  Depending on the particular circumstances, third party ownership could create a significant problem locating your dock, or worse yet, how about if the submerged land owner tries building a dock on his submerged property?  
  3. Are there existing or potential riparian rights issues with the neighboring properties? The main reason most people purchase waterfront property is for riparian rights.  These rights include the right to ingress and egress by boat, the right to build a dock, the right to fish, and the right to view the water to name a few.  Is your neighbor’s existing dock blocking your view of the water? Is your neighbor’s dock located such that when he wants to add a boat lift, your ingress and egress will be blocked? Does the location of your neighbors dock impact how you will have to construct your new dock?
  4.  Are your neighbors using your land?  Is there a path or walkway across the lot that extends to the water?  Does someone other than the seller maintain a dock or moor boats on or adjacent to the property?  If so, further investigation is required before you buy, to determine what legal rights, if any, such users might possess.
  5. Are there pre-existing issues with neighbors or the association?  Buyers always need to talk to the homeowner's association.  Many waterfront areas have homeowner's associations that may have valuable information regarding issues that have confronted riparian owners.  Are there current disputes, past issues, that may remain unresolved or understandings regarding rights to use waterfront areas?  Owners of adjacent lots may have similarly valuable information
  6. Will erosion or accretion be an issue for the property?  Erosion and to a lesser degree accretion, are big concerns for waterfront property owners. Over time, you can actually lose property (erosion) or gain property (accretion) if the shoreline has not been appropriately protected and buffered. If a sea wall or bulkhead of some type already exists, then you should invest in an inspection to determine if it’s sufficient, has been properly maintained, etc.
  7. What questionable documents are contained in the title search or commitment.  If there are covenants, restrictions, declarations or similar encumbrances to which the land is subject, they must reviewed and analyzed.  Does you deed properly convey riparian rights?  Have they been severed by a previous owner?
  8. What about the waterbody and future permitting? How deep is the water adjacent to your property?  That will directly affect your ability to build a dock and/or determine how long your dock will need to be.  Are there any water quality issues?  Are the existing in water structures properly permitted?  What is the likelihood you can add a slip, or a roof to a boathouse or bring in a larger boat?  Local permitting knowledge is essential and all these questions need to be addressed before you buy waterfront property.
  9. Do any local ordinances restrict or otherwise control the use of the waterfront?  Some municipalities have enacted ordinances to regulate docks and the mooring of boats.  Some areas have significant building setback requirements on the upland.  Some areas don’t allow new seawalls.  Aside from regulating in water structures, most areas have specific engineering requirements for waterfront property. 
  10. What will insurance cost?  Check out insurance carefully, as there are different types of policies and coverage that are important when purchasing waterfront property. Flood insurance and hazard policies address different things and can be complicated. Be sure to investigate wind damage to see if additional riders are required. 
There is no substitute for expert advice and specific information when it comes to buying waterfront property.  Due diligence is the key, don’t let yourself down.  If you think you are buying waterfront property confirm that fact by investigating BEFORE you buy.  Equipped with the right expertise, guidance and knowledge, you’ll be ready to turn to your waterfront dream into a reality. Call Guy Yudin & Foster, LLP. at 772.286.7372 for help with your waterfront property transaction.

Tuesday, October 11, 2016

Real Estate Lawyer Stuart, FL – 9 reasons why you need one

Real Estate Lawyer Stuart, FL –
9 reasons why you need one
Buying or Selling Real Estate in Stuart, Florida?

For many people home ownership is their most significant financial investment.  In order to protect your investment, hiring a real estate attorney is a smart choice whether you’re buying or selling.  A real estate lawyer can protect your rights and interests in the transaction; protect you against the unexpected; ensure a smooth and low-stress closing; and is the only one involved in the transaction who is qualified to provide you with legal advice.

What happens if the property has an illegal structure, termites, lead paint, asbestos, or other potentially hazardous conditions? What If there is an issue with your deal, what are your legal obligations?  Can you back out of the contract? Can you get your earnest money back? Will you owe the other party any money for changing your mind? Do you have sufficient time under the contract to get inspections done? Are there mistakes in the contract documents? Are there mistakes in the closing documents? And will that cost you money?

Your real estate attorney will keep an eye on all these different areas of concern and many more.  Knowing you have an independent, and experienced real estate attorney on your side will give you peace of mind and help you get your through what is often times a stressful situation.



1. Buyers need to know if the property has an unpermitted addition or improvements. If a seller has failed to obtain permits for an addition or other improvements to the property, it can be extremely difficult for a buyer to obtain any sort of satisfactory resolution after the closing. In order to protect themselves, buyers need to know if local codes and state regulations have been followed, and if they haven’t, what to do about it.

2. No matter how experienced you are at buying or selling residential property, any commercial real estate transaction involves complications which do not arise in simpler residential real estate deals. A real estate lawyer is important in commercial transaction so that these additional legal issues such as easements, corporate ownership, leaseholds, environmental issues, structured financing, tenant claims can be resolved in a timely and satisfactory manner.

3. Out of town buyers are particularly in need of a real estate lawyer. As a buyer you need someone local on the ground and familiar with the particular nuances of the area in which you are purchasing. Not only can your real estate attorney be your local point of contact for participants in the transaction, they normally are aware of specific municipal, county, state, or even federal regulations that may apply to the property.

4. Are you concerned the seller and/or real estate agent aren’t telling you something about the property? As difficult as it may be to believe, not every seller or real estate agent is honest and above-board; if you are suspicious, then a real estate lawyer can help you get answer to questions or suggest contract language to address specific concerns.

5. Are you buying or selling a property that is part of a trust or is in a probate administration? If so, it is not always clear who is representing the interest of the beneficiaries. Is the trustee or personal representative or perhaps one of the other heirs acting on behalf of the estate? Your real estate lawyer will help in jumping through the hoops associated with wills, trusts and probate courts.

6. Your real estate attorney will read everything. The volume of paperwork is insane. It’s tempting to throw up your hands and stop reading after the fifth page of your contract but that’s the way money gets wasted. Your attorney will read through your paperwork and raise any concerns. Even if there are no obvious red flags, your attorney will know the details of your transaction and can easily deal with issues if questions come up.

7. Do you want your attorney to hold your deposit just in case there is a problem with the transaction? Or do you want an unknown 3rd party holding your earnest money deposit? Real estate lawyers can act as escrow agents and most handle title insurance as well.

8. Are you concerned that you may not qualify for financing and you may lose your deposit? Your real estate attorney can suggest contract clauses to address this issue, including returning the deposit to the buyer if the buyer is unable to obtain prevailing market financing.

9. Do you what to make sure when you arrive at the closing you aren’t required to sign documents you are not obligated to sign under your contract? An experienced real estate lawyer will review the closing documentation before closing to be sure you only sign those documents called for in the contract.

Your real estate attorney has no personal interest in the outcome of the transaction other than making sure you, the client is taken care of. All other parties assisting you in the transaction have a financial interest – namely, commissions and payments which are far greater than your attorney Don’t wait until you receive an offer to sell your property. Contact a real estate attorney today to discuss how they can protect your interests from the outset.


Monday, September 12, 2016

The Ten Biggest Mistakes Made by Business Owners


10 Biggest Mistakes Made by Business Owners

The Small Business Administration estimates at least half of all new businesses fail within the first five years, and only about one third of new businesses last ten years.  The major factors which play in to the high failure rate of small businesses include a variety of economic and operational risks which are faced to one degree or another by every business.  In cases where those inherent risks of operating a small business are compounded with legal mistakes, the chances of business failure rises significantly.  Below is a list of ten of the most common mistakes our firm sees when we consult with new businesses.


1. Doing business without a corporate entity.
In more instances than you would believe, small business owners start conducting business without first forming a business entity.  Each case is different, some are afraid of the expense.  Some think they can sidestep the tedious corporate formalities.  Some don’t realize the purpose of creating a business entity and some people feel like corporate structure is only for “big” business.  Like it or not, the reality is that EVERY business doing business in Florida (ie. domestic and foreign) needs to register a corporate entity with the Florida Division of Corporations, if for no other reason, than to protect your personal assets from your business liabilities. 

2. Lack of a business plan.
Every business should have a business plan. Unfortunately, the vast majority of business plans are hardly worth the paper they're printed on.  It is not uncommon to see plans that are sloppy, poorly written or incomplete.  A good business plan presents an overview of the business in both the short and long term.  It should explain how you will get from point A to point B.  The plan should be a "roadmap" for your business. It should contain attainable milestones and targets and layout the steps you need to reach those goals. 

3. Outside investors.
Many small business owners bring in outside investors when they are desperate for cash. Shortly thereafter, the investor gets impatient and begins clamoring for a return on his investment.  This almost invariably leads into a dispute between the owner and investor as to how to operate the business, which ultimately ends up in a lawsuit.  To a prudent business owner, the identity and character of the investor is as important as how much money they are willing to invest. The bottom line -- choose investors very, very carefully.

4. Failure to do a shareholder or buy/sell agreement.
Every small business with more than one owner needs a shareholder or buy/sell  agreement.  This type of document specifically lays out how the business will operate,  how the owners will govern the business, management, voting rights, profit-sharing, new owners or investors, succession plans and perhaps most importantly, how dispute between owners will be resolved.  It is more likely than not the ownership group of the business will expand or change and, much like a will that provides for an orderly disposition of assets upon death, having a well-considered agreement among the owners can head off or limit disputes down the road and promote harmony among the owners.

5. Treating Independent Contractors as Employees
Many startup businesses make use of independent contractors, and with good reason.  They provide the ability to get tasks completed and don’t tie you to the requirements that come with having employees.  Use caution in how you deal with independent contractors. The IRS provides detailed information and a multiple point test to determine whether the independent contractor you’ve hired is actually a W-2 employee in disguise. It is important to review that test and understand the legal risk and consequences of not complying with the rules related to independent contractors.

6.  Using Online Contracts
Many business owners seek to skimp on legal services using contract templates they find online.  For small things like maybe advancing an employee an extra week salary, online contracts can be fine.  However, for anything which could have more drastic consequences down the line, contract templates are not a good idea at all.  Worse yet are those business owners who believe they are sophisticated enough to cut and paste clauses from several different online contracts.  In most instances, enforcing these types of contracts is a very difficult and expensive prospect.  Online contracts are generic contracts.  They do not take in to account the unique circumstances which exist in almost every contractual relationship, and such contracts almost always filled with legal loopholes.  The sad part is those legal loopholes can be closed by an experienced attorney for a couple hundred dollars.  Instead, the business owner winds up spending thousands of dollar litigating the meaning of ambiguous terms.   In short, the internet can make you feel like you are an expert, but you aren’t.  Find a local experienced attorney or eventually you will be reminded of the old adage, “you get what you pay for”.
  
7. Signing personal guarantees.
In almost any new business, access to credit is conditioned upon a business owners personal guarantee for the loan.  The reason for this is simple, new businesses do not have the resources to repay a loan.  Unfortunately, many business owners do comprehend the potential negative impact of guaranteeing their company’s debts, or personally guaranteeing other contractual obligations.  If you are one of the 50% of all small businesses that fail within the first five years, you are on the hook for all the debt the company incurred.  The potential hardships are obvious, and drive many people to bankruptcy.

8. Failure to avoid costly litigation.
As a business litigator, take it from me, litigation is expensive and causes a significant drain on the time and efforts of the business owner and any involved employees.  I always council my clients that business litigation should only be considered as a last resort.  Before getting involved in litigation, any small business should try to temper the emotions that are caused by a dispute and consider the costs and benefits of the litigation, just like they would any other business decision, and determine any collateral effects of the litigation as well.

9. Talking trash about their competition.
The temptation for small businesses to talk trash about their competitors publically or anonymously on the web is growing. Be careful not to libel them. What to do: Seek the advice of an attorney for what is libel and what is freedom of speech.

10. Failure to consult a lawyer.
A bit of self-serving advice, to be sure, but sensible nonetheless. Many business owners in general resist working with attorneys mainly due to the expense — they download contracts or  incorporation documents, which is fine until there is a problem.  One a problem erupts you can generally count on spending thousands of dollars to correct the problem which could have been averted by spending a few hundred dollars working with an attorney who has practical experience.




Keep in mind this list is by no means an all-inclusive list of all the possible legal mistakes business owners can make; just some of the most common. If you are a business owner or have the dream of opening your own business and would like some sound legal counsel from an experienced team of attorneys, the lawyers at Guy Yudin & Foster, LLP. are here to help! Feel free to contact our business lawyers here, or give us a call at (772) 286-7372.

Wednesday, August 17, 2016

Property Tax Time Again!



Property Tax Time Again!

Its property tax time again! 

TRIM Notices

If they haven’t done so already, all property appraiser offices around the State of Florida will be sending out their Truth in Millage (TRIM) Notices in the next few days.  TRIM Notices of course are the process by which each county property appraiser’s office informs taxpayers about their proposed ad valorem (property) taxes.  TRIM Notices are otherwise known to most of us as our “Notice of Proposed Property Taxes”


Many property owners simply ignore their TRIM Notice.  If you are one of the many and ignore your taxes until November you will lose your right to file an appeal of the valuation of your property. Therefore it is very important for all of use to review our TRIM Notices just to be sure nothing out of the ordinary.  In the event you do feel like the listed market value of your property is out of line, you must act before the deadline which should be noted at the bottom of your TRIM Notice. 

Be forewarned.  For the normal everyday homeowner, it is not usually cost effective or practical to contact an attorney to contest your proposed property taxes.  Thus, in more cases than not, a homeowner will be left to argue with the property appraiser’s office by himself.  Conversely, with many commercial and industrial properties the dollar amounts are far greater and it makes a lot of sense to contact an attorney with experience in dealing with the property appraiser’s office.

Informal Meeting

The first step in contesting your valuation normally consists of scheduling an informal meeting with the property appraiser.  However, given the fact there is precious little time between issuance of TRIM Notices and the deadline to file an appeal, you must act fast in order to schedule a meeting before the appeal deadline.  When you call to schedule a meeting, you should always request a copy of any and all documents which the property appraiser has prepared, or has relied on in setting your valuation.  Obtain this material as soon as possible, as this will give you guidance as to where you can focus your request for a reduction. 

The next step is to either hire someone or do your own research in order to document a lower valuation. Surprisingly enough, if you have done your homework and can provide the property appraiser with appropriate documentation to substantiate an incorrect valuation, it is not unheard of to reach an agreement reducing your valuation.  The key to a productive meeting with the property appraiser is providing documentation to support a reduction in your valuation.  Without adequate documentation you stand little or no chance of success.  

In the event you are unable to schedule an informal meeting prior to the deadline cited on your TRIM Notice, it is absolutely imperative you file an appeal before your informal meeting.  This create a placeholder for your claim and preserves your rights in the event you cannot reach an agreement at your informal meeting.  You can always withdraw your petition after your informal meeting if need be.

VAB Appeal

If you were not able to reach an agreement with the property appraiser, your next step is to pursue your petition with the value adjustment board (VAB).  This is of course, assuming you have already done your homework and can document an incorrect valuation of your property. If you can’t provide documentary proof the property appraiser is wrong, you are simply wasting your time.  Petition forms are usually available from the Clerk of the Court website or the property appraiser office.  Again, deadlines for filing petitions are usually set forth on the TRIM Notices with the deadline being the 25th day after the property appraiser mails the TRIM Notice.  You are permitted to be represented by an attorney at your VAB hearing, but it is not required.

Parenthetically, there is always the option of filing a lawsuit in circuit court, however, that option really only makes financial sense for very few property owners.  In the vast majority of instances, going to the VAB is the only practical option. 

The VAB is a five member quasi judicial board with two county commissioners, a school board member and two appointed citizens.  In most counties, your hearing will be scheduled in front of a Special Magistrate rather than the VAB itself.  Special Magistrates are hired by the VAB to conduct the hearing and provide recommended orders to the VAB. 

Prior to the VAB hearing, there is a mandatory exchange of evidence so again, you must have spent the time doing your homework and have the ability to document a reduced valuation.

On the day of the hearing, the Special Magistrate will probably begin by going over the rules.  Petitioner then goes first presenting his case, followed by the Property Appraiser, and Petitioner then gets a final chance to reply.  Plan on having all witnesses attend and testify at the hearing as frequently you find affidavits, letters and other extraneous documents will not be admitted in to evidence without being authenticated by live testimony.

At the conclusion of the hearing, the Special Magistrate will normally not render his decision verbally, but will issue a written recommended order to the VAB shortly thereafter.  You will be copied on everything that issued by the Special Magistrate or the VAB.  In the vast, vast majority of cases, the VAB will simply rubber stamp the Special Magistrates recommended order.  After all, that is what the VAB is paying him to do.  If you do not prevail in the VAB appeal, you always have the right to appeal that decision to the circuit court.  But again, going to the circuit court in pursuit of a VAB appeal really only makes sense in a very few limited circumstances, as there is no means to recover attorneys fees incurred to contesting your property valuation.

 Conclusion
If it isn’t apparent above, the key to succeeding in contesting your TRIM Notice (whether it be at an informal meeting, a VAB appeal or in circuit court) is to be able to adequately document an incorrect valuation.  Without the appropriate documentation to support your claims you might as well forget about contesting you tax assessment.  With the right documentation however, it might just be worth your time.