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A Good Advice Article from Fort Lauderdale, Florida Real Estate Attorney, Kim Douglas Sherman, Esquire

“Basic definitions are helpful in understanding real estate law,” says Real Estate Lawyer, Kim Douglas Sherman.

“Real Property” is defined as land or buildings that cannot be moved by the owner. Unlike a mobile home or personal property that can be transported and be easily transferred, Real Estate has applicable rules of ownership and transfer that recognize its special character.

The difference between Warranty Deeds and Quit Claim Deeds is significant according to Florida Real Estate Lawyer, Sherman. For almost forty years, Attorney Sherman, has observed that the difference between these two kinds of transferring documents is widely misunderstood.  A Quit Claim Deed is used to convey whatever ownership interest the signer may have in the property.  It is sometimes erroneously called a “Quick Claim Deed.”  The key to this document is that it makes no warranty of the quality or character of the ownership being conveyed.  The recipient of the interest conveyed must be cautious and should seek professional counsel of a real estate attorney to determine the interest being received when using a Quit Claim Deed. 

By contrast, says attorney Sherman, “a Warranty Deed represents and guaranties the interest being transferred.”  If the interest is not what was represented by the transferor, the recipient of the Warranty Deed can pursue a claim for damages against the person or party who gave the warranty deed. Clearly, it is better to receive a Warranty Deed.  When title to real estate property is being transferred, the transaction is a substantial one that merits retaining a lawyer and, because of the value usually connected with real property, the purchase of title insurance should be considered advisable.  By paying a one-time premium for a title insurance policy, if there is a defect in the title, the insurance company takes the responsibility for getting the title cleared or for paying the monetary loss of not getting the benefit of your bargain.

Florida Real Estate Property Lawyer, Kim Douglas Sherman, advises that knowing the difference between different kinds of joint ownership of real property is important.  The simplest type of joint ownership is called “joint tenancy.” With joint tenancy, the joint owners have equal rights and equal responsibilities relating to the property.  A “joint tenant” is free to transfer, sell or to encumber [put a mortgage or lien] against their ownership portion of the property.  When a joint tenancy owner dies, the deceased owner’s share in the property passes through their estate to their heirs or beneficiaries.  When a “joint tenant” has a creditor, that creditor can try to collect against that person’s ownership interest.  This negative feature should be considered when a parent is thinking of adding their child on to become a joint owner.  “Joint tenancy with the right of survivorship,” has the additional characteristic that it provides that a deceased co-tenant’s ownership will pass automatically to the surviving co-owner[s].  Mr. Sherman points out that according to Florida Law, the right of survivorship provision can be defeated if a conveyance or creditor’s attack is made during a joint tenant’s lifetime.  Knowing this legal fact may be important in deciding how to take title to the real property in the first instance.

Lawyer Sherman identifies that very special type of joint ownership called “Tenancy by the Entireties.”  This type of joint ownership in real property is reserved for persons who are married to each other.  Like tenancy with the right of survivorship, the property passes to the surviving owner, but “By The Entireties” ownership protects the whole property from the actions of one owner alone.  Florida Real Estate Law provides that creditors of just one of the joint owners cannot attack such property, absent certain types of fraudulent conduct.  Because the law looks at ownership of  “entireties property” as indivisible, both owners are required to join in making a conveyance or in encumbering the property.  If the property is the permanent home and residence of the married couple, in Florida, an additional protection called “Homestead” attaches.  The concept of “Homestead” is too complex to address in this brief article.

Real Estate Lawyer, Kim Douglas Sherman, Esquire calls attention to the advantages of having a trust be made the owner of real property.  Properly formed, a trust can preserve the beneficial owners’ rights to use the property and to claim the benefits of “homestead” and other tax credits, while ensuring that the property will pass on to the trust’s named beneficiaries.  Having property deeded into a trust is particularly useful when estate planning involving owner’s who have children from different partners and a spouse who came after the initial purchase of the property.  A trust can also protect the property from the claims of creditors.  Consult a Real Estate Attorney with experience like Mr. Sherman to discuss what kind of ownership would be best for your needs.

To contact and to learn more about Fort Lauderdale Real Estate Attorney, Kim Douglas Sherman, visit his website: www.ShermanLegal.com or call (954) 489-9500.



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