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Legal Hotline

Complaints

Q. I’m a broker for a large brokerage. I just found out that one of my sales associates pled to a Trafficking in Cocaine charge and the Florida Real Estate Commission (FREC) charged the associate in April 2006 with pleading nolo contendere to a crime that involves moral turpitude. Didn’t FREC have an obligation to inform me about this?

A.
No. Neither FREC nor the Department of Business and Professional Regulation (DBPR) had a duty to inform at that time. However, as of July 1, 2006, Section 475.25(6), Florida Statutes, requires the DBPR or FREC to notify a licensee’s broker or employer, in writing, when a formal complaint is filed against a licensee alleging violations of Chapter 475 or Chapter 455.

Coastal Construction

Q. What are coastal construction control lines (CCCLs)?

A.
CCCLs are jurisdictional lines established by the Florida Department of Environmental Protection (DEP) inland from the sand beaches of Florida for the purpose of protecting the beach and dune system.
Control lines are not setbacklines, but they represent the landward limit of significant damageto upland structures from water forces from a 100-year coastal storm.

Q. How are CCCLs established?

A.
The DEP establishes the line county by county after completing comprehensive engineering studies involving historical weather data, erosion trends, offshore bathymetry (i.e. measurement of water depth), local tides and topographic surveys and after conducting a public hearing.

The DEP’s Web site, www.floridadep.org/beaches, offers a wealth of information about the CCCLProgram and access to forms, guidelines, educational publications and an interactive Web-mapping feature.

Q. Once the CCCL has been established, where is it recorded?

A.
The CCCL is recorded in the public records of the county where the property is located.

Q. Is construction seaward of the CCCL ever permitted?

A.
Yes, construction seaward of the control line is allowed if a CCCL permit from the DEP is acquired or the construction or activity is exempt by rule or law.
The standards that must be met before a CCCL permit is issued are often more stringent than those applied in the rest of the coastal building zone.

Contracts

Q. I’m using the FAR 8 contract, and I see a clause that states that Paragraph 19 cannot be used to modify any MLS or other offer of compensation made by the seller or listing broker to cooperating brokers. Does this mean I may not negotiate my commission?

A.
No. You may still negotiate the commission if the listing broker is willing to pay you an amount different from that advertised in the MLS. However, Standard of Practice 16-16 of the Code of Ethics would prohibit you from using the terms of an offer to modify the listing broker’s offer of compensation, or from making the submission of an offer contingent on the listing broker’s agreement to modify the offer of compensation.

Q. I’ve been seeing a lot of FAR Exclusive Right of Sale Listing Agreements that aren’t signed by the seller but are simply filled out by the sales associate with the name of the seller. Would the listing agreement be enforceable if the seller doesn’t actually sign the form?

A.
Yes. Listing agreements aren’t required to be in writing. However, Section 475.25(1)(r), Florida Statutes, requires a real estate licensee to include a definite expiration date; a description of the property, price and terms, and fee or commission; and a proper signature of the principal(s) in any written listing agreement. If the listing agreement is in writing, license law requires the real estate licensee to obtain the signature of the principal(s).

Disclosures

Q. I’m a broker in Key West.I’ve heard that sellers in Key West are exempt from the CCCL disclosure requirement. Is this true?

A.
Most of the Florida Keys, including Key West, are in Monroe County. There have been no CCCLs established for Monroe County. Therefore, sellers in Key West are not required to give the CCCL disclosure.

Do Not Call Law

Q. Does the federal do not call legislation apply to door-to-door solicitations?

A.
No. However, you may still be prohibited from making door-to-door solicitations if there is a community, municipal or county restriction on door-to-door solicitations or if there is a posted No Trespassing sign on the property or the community.

Fair Housing Act

Q. I’m a property manager. The owner I represent is a non-smoker who doesn’t want to rent her property to a smoker. May a property owner refuse to lease his or her property to a smoker?

A.
Yes. The Fair Housing Act only prohibits discrimination based on race, color, religion, national origin, gender, familial status and disability. These are considered protected classes. Local laws may also prohibit discrimination based on sexual orientation or age. Smokers aren’t a protected class; therefore, an owner may refuse to rent to a smoker.

Q. I represented a buyer who made application to a 55+ community and was denied because he was 50 years old. I know 55+ communities must have at least 80 percent occupancy by at least one person 55 years of age or older, but that means 20 percent of the occupied units could be occupied by persons under the age of 55. If at least 80 percent of the occupied units were occupied by persons 55 years of age or older, was it a violation of the Fair Housing Act for the condominium association to deny my buyer’s application on the basis of his age?

A.
No. First, 55+ communities aren’t required to allow 20 percent occupancy by persons under the age of 55. The 20 percent is merely a cushion that 55+ communities have and may use without losing exemption. Many 55+ communities use the 20 percent to allow for unexpected turnover of the units, for example, the death of an occupant and inheritance by someone under the age of 55. Second, the Fair Housing Act does not prohibit age discrimination; it only prohibits discrimination against families with children.

Real Estate Practice

Q. My seller wants to auction his property for a quick sale. If I auction the property for sale using a minimum bid, will my seller be bound to accept that minimum bid from a potential buyer?

A.
In most instances, either the seller or the auctioneer may withdraw the property to be sold by auction from the sale at any time before acceptance of the bid on the theory that a bid constitutes a mere offer. Until it is accepted there is no binding contract between the parties.

FAR members may speak with an attorney on a range of topics including licensing, contracts and landlord/tenant matters. Legal Hotline: (407) 438-1409