Others Services FAQs

What is FIRPTA?
Am I considered a “foreign person”?
What property can be liened?
When should I record a lien?
Can an unlicensed contractor take advantage of the Mechanic’s Lien law?
What is a Notice of Commencement?
What is a Notice to Owner?
Help! My property has been improperly liened!
What reasons does a landlord have to start an eviction?
How do I begin an eviction?
How long does an eviction take?
Do I need an attorney to file an eviction?
What defenses does a tenant have to an eviction?
Who will pay my attorney’s fees?
What options does an association have for the collection of past due assessments?
What is the process to collect on assessments?
What is FIRPTA?

When a foreign person sells U.S. real estate, he or she is subject to having 10% of the gross sales price withheld from the proceeds received at closing. This is required by the Foreign Investment in Real Property Tax Act (FIRPTA). There are exceptions from FIRPTA withholding that you will want to inquire of your accountant and real estate attorney.

Am I considered a “foreign person”?

For purposes of FIRPTA, a foreign person is a nonresident alien individual, foreign corporation that has not made an election under section 897(i) of the Internal Revenue Code to be treated as a domestic corporation, foreign partnership, foreign trust, or foreign estate. It does not include a resident alien individual.
Florida’s construction lien law has been described by one court as a statute that “makes life miserable for judges, lawyers, legislators and the vitally affected construction and lending industries.” The statute provides a powerful mechanism for those who supply materials and labor to a project to ensure payment, and it also provides a regimented framework for owners to ensure that they only pay once for work done on a project. But the statute is often viewed as confusing and difficult to comply with. The construction law attorneys at Berlin Patten Ebling can help contractors navigate the statute’s requirements, and ensure that they get paid for their hard work. They can also ensure that an owner is not saddled with an improper claim for payment, or an improper lien that clouds title to their property.

What property can be liened?

Generally, only privately owned property can be liened. If the property that you are seeking to lien is owned by a County, a municipality or another government entity, it is exempt from Florida’s construction lien law.

When should I record a lien?

The Florida Statutes require that a Claim of Lien be recorded within 90 days from the date that a lienor last furnished services or material. If the lien is not recorded during that time period, it is ineffective and may lead to a fraudulent lien claim against the lienor. Some follow-up work can extend the 90-day period, but minor follow up repairs (punch-list items) typically will not. An attorney can advise you if you are within your 90-day window to record a lien.
A Claim of Lien is generally valid for one year after the date that it is recorded, and will expire after that period. However, if an owner properly contests the lien, the deadline for filing a suit is shortened to 60 days. A Claim of Lien must be served on the owner within 15 days of recording the lien.

Can an unlicensed contractor take advantage of the Mechanic’s Lien law?

No. Any lien recorded by an unlicensed contractor can be declared unenforceable.

What is a Notice of Commencement?

A Notice of Commencement is a document prepared and recorded by the owner of the property that will be worked on. It provides the name and address of the owner, and causes anyone who performs services or delivers material to the project to provide the owner with a Notice to Owner if they intend to secure their claim for payment. Once a Notice of Commencement is recorded, the owner is protected from any claims of subcontractors that they have not contracted with, and who failed to provide a Notice to Owner.

What is a Notice to Owner?

A Notice to Owner is a document that is sent to the owner of a project by any party that does not have a contract with the owner. It should also be sent to the general contractor on the project, and to any lender that is identified in a Notice of Commencement. The document is important to ensure that a subcontractor gets paid for labor or materials that it furnishes to a project. It usually must be served on the owner within 45 days of the date that materials are delivered or work is first performed on a project – the failure to abide by that deadline will result in the inability to record a lien for any work that is not paid for.

Help! My property has been improperly liened!

You’ve come to the right place. After a consultation with us, you will know whether or not the lien on your property is proper and whether it is still effective. We can also explain what options you have for removing the lien, and recovering damages or attorney’s fees from the party who improperly recorded it.

What reasons does a landlord have to start an eviction?

The most common reason to file an eviction is a tenant’s failure to pay rent as it comes due. A landlord may also file an eviction if some other obligation of the lease has been broken. Your lease and the Florida Statutes govern how different types of eviction actions will occur, and what types of notices must be given to a tenant.

How do I begin an eviction?

Every eviction begins with a notice to the tenant that either demands rent from them, or tells them what violation of the lease has occurred. Usually, these notices give the tenant an opportunity to cure the default before the eviction is allowed to proceed. Different types of notices are used for different types of defaults, and they must include very specific language. We recommend that you consult with an attorney to ensure that this pivotal first step, and the rest of the eviction process, is done correctly.

How long does an eviction take?

An uncontested eviction usually takes about four weeks to complete. This assumes that the tenant does not raise any defenses. Some counties require a final hearing, even for uncontested evictions, and in those counties the process can take a little bit longer. If the tenant moves out of the property after a final judgment is rendered, and no writ of possession needs to be issued, the process will take about three weeks.

Do I need an attorney to file an eviction?

The eviction process in Florida is highly regimented, and is governed by statutory and contractual law. While a landlord is permitted to file an eviction action, and prosecute the action on their own behalf, the presence of an attorney will ensure that all procedural steps are correctly taken, and the eviction moves forward as smoothly as possible. If you choose to file an eviction action yourself, the Clerk of the Court may be able to provide you with documents to help you through the process.

What defenses does a tenant have to an eviction?

The Florida Statutes and case law allow certain defenses to be raised by tenants, but only if they pay any rent that is alleged to be owed into the court’s registry (bank account). Further, one of the most common defenses raised by tenants (a claim that the landlord failed to maintain the premises) can only be raised if certain procedures are followed. We can assist in responding to and defeating any defenses that are raised, and ensure that your eviction proceeds as quickly as possible.

Who will pay my attorney’s fees?

The Florida Statutes allow the party who wins an eviction action to recover their attorney’s fees from the losing party. That being said, if the reason that a landlord files for eviction is non-payment of rent, the likelihood of collecting on a judgment for attorney’s fees may be slim. We analyze the odds of collection on a case-by-case basis, and advise clients as to whether it makes sense to try to collect.

What options does an association have for the collection of past due assessments?

The Florida Statutes set out a procedure whereby an association may provide a property owner with notices of past due assessments, and eventually record a lien against property if the assessments remain unpaid. The association then has the option to foreclose on the lien, and to recover the amount that it is due from the sale of the property. Alternatively, an association can file an action to recover a money judgment against an owner. The rights that an association has against the owner who incurred the assessments, a party who took title after a foreclosure or a party who took title after a tax deed sale may differ.
If a senior lien-holder exists (for instance, a bank who holds a mortgage), it sometimes still makes sense to go through with the foreclosure process. The bank’s lien will still exist, but until the bank forecloses its own lien, the association can rent the property out to recoup the amounts that it is due. We can help
you determine what lien rights your association enjoys, what priority they have vis-à-vis other liens, and we can advise you on the proper procedure for enforcing those rights. If appropriate, we can prosecute any foreclosure action that is required to ensure that the association gets paid.

What is the process to collect on assessments?

Once we receive the appropriate paperwork from you, we will send a demand letter to the property owner advising them that an attorney has been hired, and advising as to the amount owed. If we do not receive timely payment after that, we will record a Claim of Lien against the property. After a Claim of Lien is recorded, we will discuss with you the next step to take. We typically prefer to take an aggressive approach, in which case we would file an action for collection and foreclosure of the Claim of Lien after an appropriate period has passed. We will collect the past due assessments, interest, and attorney’s fees and costs from the property owner.

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