Property Law issues arise in business, family, and personal settings, commercial and residential arenas, involve rental properties, inherited or purchased properties, and could involve governmental licensing and permitting boards, courts and mediators, insurance adjusters and attorneys, community associations, wills and estates, contract negotiations, arbitration, limited liability companies and a myriad of other legal considerations which may require the help of a competent attorney.
Every case is different and the tiny intricate facts often matter in cases involving property rights. For a general overview on Findlaw.com regarding state property issues, check out these links: Kentucky Property Law | Florida Property Law. Common property law issues may involve the concepts briefly explained below:
Premises Liability is a legal concept involving a plaintiff's injury due to unsafe and/or defective property conditions. Negligent/Inadequate Security cases arise when a criminal act occurs on a property where the owner has a duty to protect guests/invitees from such harm by providing security measures for guest safety. These cases can arise in parking lots or garages, around and inside stores or shopping malls, hotels, office complexes, schools, and parking garages. Most of these cases arise from violent, unexpected attacks, or sexual assaults, occurring where guests/invitees, or possibly trespassers, should feel protected. Often, state statues will require that injuries sustained were preventable and/or foreseeable. In Kentucky, a plaintiff must show that 1) the defendant owed a duty of care, but 2) breached the duty 3) causing injury. With regard to establishing a duty, "`[t]he rule [in Kentucky] is that every person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury.'" In Florida, the standard is similar, requiring proof that a duty was breached and injury was foreseeable. Florida lawyers also examine the level of are appropriate for the person injured, considering the visitor's status to be a 1) public invitee (visitor invited to event on property that is open to public), 2) business invitee (one doing business with a land owner and enters property), 3) licensee by invitation (such as a social guest to a birthday party), 4) uninvited licensee or 5) trespasser upon the property. In Florida, the first 3 categories of visitors are entitled to a higher degree of care than a uninvited licensees or trespassers.
Adverse Possession is a legal theory granting a property ownership rights to a trespasser when the trespasser has been using another's property for an extended period of time continuously, openly and/or notoriously (without being evasive), exclusively, hostile (trespasser must be aware of his/her trespassing or merely occupy the land [with or without knowledge that it is private property] or make an honest mistake [such as relying on an incorrect deed], or otherwise treating it as his/her own - for example, by paying property taxes or making improvements. Adverse Possession statutes may be helpful to those who inherit property, perhaps passed down through many generations, who have no actual legal title and/or proper documentation or recordings to verify ownership. (Florida Adverse Possession requires 7 years' occupation + color of title or 7 years occupation + tax payments | Kentucky Adverse Possession statutory period is, most often,15 years. See KY Adverse Possession Information and See K.R.S. §413.010 and §413.060).
Homestead Exemptions: Kentucky's Constitution allows property owners who are 65 or older to receive a Homestead Exemption on their primary residence. If you are eligible to receive the Kentucky Homestead Exemption, the exemption amount is subtracted from your property's assessed value, reducing your property tax liability (for 2019 - 2020, the amount is $39,300). In Florida, when someone owns property and makes it his/her permanent residence (or the permanent residence of his/her dependent), the property owner may be eligible to receive a homestead exemption up to $50,000. The first $25,000 applies to all property taxes, including school district taxes. The additional exemption up to $25,000 applies to the assessed value between $50,000 and $75,000 and only to non-school taxes. Florida also has additional benefits that can reduce property tax liability such as the Save Our Homes assessment limitation that assists thousands of homeowners in saving money on their property taxes each year. Further benefits are available to property owners with disabilities, senior citizens, veterans and active duty military service members, disabled first responders, and properties with specialized uses.
Real Estate Purchase Contracts/Agreements are binding agreement, usually between two parties, for the transfer of a home or commercial property. The parties must both have the legal capacity to make the purchase, exchange, or other conveyance of the real property in question. The contract is based on a legal "consideration" and is often created using templates of state legislatures and administrations governing the sale of real estate. In Kentucky, K.R.S. Title XXIII, Chapters 381-385, governs the ownership and transfer of property. Florida Realtors have three residential contracts templates; two are Florida Realtors/Florida Bar contracts (FR/Bar), 1) the standard Residential Contract for Sale and Purchase and the 2) “AS IS” version, and one is the 3) Florida Realtors Contract for Residential Sale and Purchase (CRSP).
Residential & Commercial Lease Agreements + Eviction (Uniform Residential Landlord Tenant Act): Florida Statutes, Title VI, Chapter 83 Governs Residential and Commercial Landlord And Tenant cases. The Florida Bar Association also provides consumers with guidance on standard lease agreements and eviction procedures on its website. Miami-Dade County government also provides sample lease documents for public use. In Kentucky, Chapter 383 of the Kentucky Revised Statutes (KRS) governs residential and commercial leases. Both Kentucky and Florida utilize the U.R.L.T.A. "URLTA", or Uniform Residential Landlord Tenant Act, in whole or in part. URLTA is a federal act endorsed by the American Bar Association in 1974 created to standardize lease and eviction terms and procedures. See Also.
The Kentucky Condominium Act is found from K.R.S. 381.9101 to 381.9207. Florida's Condominium Statutes are within Title XL, "Real and Personal Property" Chapter 718. Legal matters in condo law may involve contract review and revision, general legal advice regarding local property laws, enforcement of restrictions, collection of unpaid assessments, bylaw(s) and amendment(s) drafting and/or enforcement, board meetings, litigation against or on behalf of a community association or condo/coop, negotiations pre-suit, mediation and negotiation during lawsuits, litigation at hearings or in trial, discovery and evidence collection/preservation, administrative and judicial appeals, supplier and contractor agreements, pursuit of construction defect claims, trespass (civil/criminal), civil injunctions, contract remedies or other legal issues. According to Lawyers.com: " A host of legal issues come up concerning condominiums, particularly because the property is not entirely one’s own. Condos involve partial joint ownership, and their use (as well as use of common areas within the development) is governed by a homeowners’ or community association. Whether you are buying, selling, or renting a condo, or are an owner, board member, or developer involved in any sort of issue or dispute involving the property, consulting a real estate attorney can help you understand and protect your rights and reach a satisfying resolution. The ownership structure involved in buying into a condominium community offers many advantages, but also comes with many rules. Prospective buyers can expect to have to wade through and make sure they can live under the association’s bylaws, rules, and or Covenants, Conditions, & Restrictions (CC&Rs). And disputes can arise in any sort of ownership matter, whether they involve an unexpected special assessment on top of monthly dues, some condo unit owners’ failure to pay these assessments, unfair actions by the volunteer board, objections to enforcement or a neighbor’s use of common areas, and more. An experienced homeowners’ association lawyer will be able to analyze your community’s various governing documents, explain the relevant law and how it applies to your property and situation, and strategize appropriate follow-up actions. If your matter might require litigation, an attorney will be able to offer insight as to local court procedures and the tendencies of prosecutors and judges. As your purchase or sale transaction or legal case moves forward, you’ll want representation you’re confident in."
Divorce and Property Division Upon Dissolution: Often, a Florida or Kentucky divorce will result in the division of the marital home or other real or tangible marital property by transfer (refinance and quit claim, for example), sale or, in difficult scenarios, foreclosure actions. Looking to your state's family law statutes for these matters will be the best reference point because family court judge make determinations regarding these other "property law" issues. The American Bar Association ("ABA") and The Family Law Quarterly publish charts in conjunction with the annual "Family Law in the Fifty States Case Digests" to summarize basic laws in each state by topic, including property division, based on law reporters from the various states.
Foreclosure: Generally, "[w]hen you sign a mortgage (or deed of trust) as part of a home loan transaction, this document gives the loan owner the right to sell the home through a process called foreclosure if you fail to make the payments. The proceeds from the sale go towards repaying the loan." See Nolo's State Foreclosure Laws information at this link. In both Kentucky and Florida, Foreclosure actions are a "judicial process" (the bank or foreclosing party must file a lawsuit and seek an order from a judge to foreclose), not a "nonjudicial" one, allowing out-of-court foreclosure. When a home foreclosure sale price is less than the outstanding mortgage debt balance (creating a "deficiency"), Kentucky and Florida laws may allow a foreclosing party to also pursue a “deficiency judgment”, an amount due to satisfy the full mortgage amount against the borrower if the mortgage is not fully paid-off/satisfied by the sale proceeds. Other states prohibit deficiency judgments. Sometimes states may allow a plaintiff to reinstate a mortgage (with certain time constraints) if he/she brings the delinquent loan current in a single payment (with fees and expenses resulting from default). Generally, Florida plaintiffs may reinstate before the clerk files the certificate of sale, or the time stated in the judgement of foreclosure. In Kentucky, generally, there is no right to reinstate the mortgage unless the terms of the mortgage contract allow a borrower reinstatement opportunities. If loan is a high-cost home loan (under Ky. Rev. Stat. Ann. § 360.100 or Chapter 494, Florida Statutes), the foreclosing party must provide a notice of default giving a borrower at least 30 days to reinstate before filing the foreclosure complaint. Veterans may receive additional foreclosure protection under the Servicemembers Civil Relief Act.
Business & Professional Property Purchases, Sales, Contracts, Loans, Court-Ordered Sales, Bankruptcy and Foreclosure: Real property, assets, inventory, intellectual property, trade secrets, contract rights, shareholder contracts and other tangible and intangible property rights may exist in the sphere of business law. Real property owned by business entities could include land or buildings, warehouses, factories, offices, investments properties and anything affixed to the land. Business transactions must be examined in light of existing state and federal business law and the contracts leading to shared property ownership. Just like an individual owning property, a business may take out loans, buy real property, sell assets, or file bankruptcy, defend foreclosure actions and/or face court orders, judgments, liens or regulatory/administrative actions. In some cases, a professional license may be considered a due process or "property right", triggering federal laws regarding the U.S.Constitution's guarantees of proper process before a citizen's rights may be impacted. Needless to say, there are a myriad of ways business and property law collide - obtain a legal consultation with a qualified business attorney and/or licensed accountants to discuss your particular business law and tax circumstances.
Property Line/Border/Boundary Dispute: The separating or dividing line or mark between two adjoining properties is a boundary. A determination of the exact line of your property may result in a border dispute with a neighboring landowner. In such case, you will need to determine precise boundary edges by agreement or litigation. A survey may assist in this determination.
Property Fencing: The University of Florida has produced the Florida Fence and Property Law Handbook, a guide "designed to inform property owners of their rights and responsibilities in terms of their duty to fence. Discussed areas include a property owner's responsibility to fence when livestock is kept on the property, the rights of adjoining landowners to fence, the placement of fences, encroachments, boundary lines, easements, contracts, nuisances, and a landowner's responsibilities towards persons who enter his or her property." In Kentucky, property owners should reference the Lawful Fence Statute, K.R.S. 256.010 and the Division Fence Statute (by agreement), K.R.S. 256.020, See Also this 2016 Kentucky Case.
Tree Damage in Kentucky is governed under K.R.S. 364.130. If a person cuts down/damages an owner's tree in Kentucky, that person may be liable to the owner for triple the value of the damages. In Florida, however, if someone damages your tree, you can typically only recover your actual damages (usually, cost of the tree or replacement cost). According to Nolo's Florida Laws on Property Disputes, "In some states, specific laws allow you to recover additional damages if someone deliberately damages your tree, but Florida does not. In addition, in states other than Florida, intentionally damaging a tree is a crime and can result in arrest, jail, fines, and other penalties. However, general Florida criminal statutes, such as those related to theft or property damage, may still apply when someone damages your tree." Always report tree theft or damage to your local law enforcement officials, be an active and participatory victim, provide photographic and video evidence, and seek full prosecution.Civil damages in Kentucky may be available at three times your damages, whereas Florida damages may only provide actual damages for the loss of a tree.
Easements (by necessity, prescription and/or for access) the right to use the property of another person. An easement by necessity is A's right to use another's property because B sold parcels that prevent A's access to roads. It comes about when A and B are neighbors, and B grants property (i.e. cutting up a parcel for sale in plots to others) and either 1) B's property or 2) the B's and C's property cuts off all of A's access to any road. An easement b prescription may be granted if A has been using B's property for personal continued use for a long period of time. This time period may be outlined in state states and case law. An easement of access is A's right to cross over B's land to access the street.
Environmental Indemnity usually coincides with the grant of an easement where A, the grantee or easement recipient, agrees to hold B, the grantor of the easement (and owner of the servient estate), harmless and indemnify him/her with regard to any environmental liability caused by A's use of B's property.
Encroachment: when another person puts up a structure that intrudes on (or over) your land. "An encroachment, as used in law, refers to an unauthorized extension, of a structure erected on the land of one owner, on adjacent land owned by another. The term is generally applied to a wall, foundation or other substantial part of the building or structure. The term "projection" is generally applied to an encroachment of a minor part of the building, such as eaves, cornices, ornamental parts of the building, or a few foundation stones. Viewed horizontally, there are three types of encroachments: encroachments, by adjoining structures, on the premises under consideration; encroachments, of structures on the premises under consideration, on adjoining property; and encroachments on abutting streets or highways. Each of these will be discussed separately as they affect buyer and seller.The existence of encroachments creates rights and liabilities between the adjoining owners thereby affected." See Milton R. Friedman, Effect of Encroachments and Projections Upon the Marketability of Title , 39 Cornell L. Rev. 237 (1954) Available at this link.
Habitability: In Kentucky, "[a] landlord shall: (a) Comply with the requirements of applicable building and housing codes materially affecting health and safety; (b) Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition; (c) Keep all common areas of the premises in a clean and safe condition; (d) Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, supplied or required to be supplied by him; and (e) Supply running water and reasonable amounts of hot water at all times and reasonable heat between October 1 and May 1 except where the building that includes the dwelling unit is not required by law to be equipped for that purpose, or the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the tenant and supplied by a direct public utility connection." in accordance with K.R.S. Title XXXII. Ownership and Conveyance of Property § 383.595. Landlord's maintenance obligations and agreements. In Florida, "[t]he landlord at all times during the tenancy shall: (a) Comply with the requirements of applicable building, housing, and health codes; or (b) Where there are no applicable building, housing, or health codes, maintain the roofs, windows, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition. The landlord, at commencement of the tenancy, must ensure that screens are installed in a reasonable condition. Thereafter, the landlord must repair damage to screens once annually, when necessary, until termination of the rental agreement. See Fla. Stat. 83.51.
Lateral support is a property owner's right to have her/his land supported by the land that lies next to it.
Subjacent support is a property owner's right to have his/her land supported by the land that lies under it.
Quiet Enjoyment is a covenant promising that property tenants and owners are free to possess the premises in peace, without disturbance by hostile claimants; and it is a right to the undisturbed use and enjoyment of real property.
Nuisance is the unreasonable, unlawful or unauthorized use of one's own property in a manner negatively impacting neighbors or the general public. Nuisance may be defined as causing inconvenience, annoyance, breach of quiet enjoyment and/or causing discomfort and/or injuries and/or damages to another person or the general public.
Trespass is the act of entering someone's private property without permission. Trespass, with and without warnings, may be punishable by law by reporting a trespass to your local law enforcement authority and seeking warnings and/or criminal prosecution. Civil trespass actions are governed by state statutes and may or may not involve issuance of injunctions or other court orders for enforcing property rights.
Improvements are additions or repairs which increase property value.
Riparian rights are the rights of a landowner to use water for any beneficial purpose based upon ownership of lands which border river banks, streams, lakes or other watercourses.
Surveying: before building on your property or making any additions, it’s important to have the plot professionally surveyed.
The Fifth Amendment Takings Clause states that "private property [shall not] be taken for public use, without just compensation." In 2005, in Kelo v. City of New London, the U.S. Supreme Court rendered a controversial opinion holding that a city could constitutionally seize private property for private commercial development, where the redevelopment would economically benefit an area that was “sufficiently distressed to justify a program of economic rejuvenation. 545 U.S. 469 (2005). However, after the Kelo decision, some state legislatures passed statutory amendments to counteract Kelo and expand protection for the condemnees. See e.g., Condemnation by Redevelopment Auth. of Fayette Certain Land in Brownsville Borough v. Redevelopment Auth., 152 A.3d 375, 376 (Pa. Commw. Ct. 2016). Nevertheless, Kelo remains a valid law under the federal context, and its broad interpretation of "public use" still holds true under the federal protection for the Fifth Amendment right to just compensation. Florida lawmakers reacted to Kelo, passing passing House Bill 1567 in 2006 to establish of a 10-year waiting period in when an eminent domain scenario involves the taking of land from a private owner to transfer it to another. Florida lawmakers have been trending to eliminate scenarios of condemnation as a means to facilitate private commercial development and prohibit the use of eminent domain processes to eradicate blight. Kentucky's legislature responded to Kelo, with House Bill 508 in 2006 tightening the definition of blight, but did not prevent condemnation in blighted areas and neighborhoods harshly like Florida. Kentucky law may also allow for certain non-blighted property to be transferred to private entities for development.
Other issues involving the merger of Property Law, Real Estate Law, Constitutional Law, Contract Law, Family Law, Business Law and related areas may include local condemnation actions, permitting or licensing matters with government counsels/boards/committees with and without hearing(s), property acquisition by a nonprofit or other entity, personal injury cases, insurance companies and negotiation, property demolition, judgments, liens or other nuances in local, state and federal settings.
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