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If you are Buying Real Estate with Someone Other than your Spouse, Have a Written Partnership Agreement.

When my clients are contemplating purchasing commercial or residential real property with another person who is not their spouse, there are many important issues for them to consider.  This blog will touch on some of the most important matters to be considered BEFORE PURCHASE.  When real estate transactions involve thousands of dollars, having a lawyer involved–before you sign any contract–is the smart decision to make.

 

Based upon over forty years of experience as a real estate attorney, here are my suggestions regarding real estate purchases by non-spouses:

  • Use a lawyer– BEFORE YOU SIGN TO PURCHASE!
  • Be aware that property that is jointly owned is subject to the claims of the other owner’s creditors.
  • Decide how the property will be used, who will maintain the property, and how will the expenses be paid.
  • Consider what will happen to the property if one of the owners dies or wants to sell.

 

Have your attorney prepare a written partnership agreement between the proposed co-owners addressing the issues mentioned above and any other special matters. If you have questions or concerns about buying real estate in the Fort Lauderdale, Broward County, Florida area, call Kim Douglas Sherman, Esquire, at (954) 489-9500.  Please look at our qualifications set forth on our website: Remember that once you have purchased property with someone who is not your spouse, it may be too late to address problems and issues that could have and should have been anticipated.  Get a lawyer to prepare a partnership agreement, before you purchase.

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Attorney Sherman Teaches Civics Class.

Recently, as one of the Florida Lawyers participating in the Florida Supreme Court, Justice Teaching Program, I was invited to teach a civics class to students in fifth grade through high school.  The class was presented with a lesson called, “The Invaders.”  It is brilliantly designed to immerse the students in current issues and their relationship to the United States Constitution.

Based upon the lesson plan and my forty years of experience as a trial lawyer, I presented and discussed the first ten amendments to the U.S. Constitution, called “The Bill of Rights.”

  • We talked about the most basic rights, like religious freedom, free speech, possessing guns, free press, jury trials, sanctity of the home, and the prohibition against cruel and unusual punishment.
  • We discussed why each of these rights were important to the founders of our country.
  • I presented news articles relating to those rights in today’s world.  For example, how religious rights were restricted and controlled in many countries, and how our Supreme Court found that citizens’ rights to possess guns could not be infringed by gun control legislation.
  • The students were then asked to each chose five rights to keep, to the exclusion of the other rights. They were next put into groups of five, and the group was asked to choose a spokesperson and the five rights that the group, as a whole, chose to keep
  • Finally, the spokesperson from each group, reported to the assembly about which rights the group chose and why.

At the end of the class, the students had done all best essay writing help of the things that our citizens should do.  They became informed on pertinent issues, they voted on their choices, and they elected their representatives.  What a marvelous lesson in civics.  If you have questions or concerns about Civil Law or Civil Litigation in the Fort Lauderdale, Broward County, Florida area, call Kim Douglas Sherman, Esquire, at (954) 489-9500.  Please look at our qualifications set forth on our website.

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Beware of the ‘Standard’ Contract!

I am often asked to review contracts for the sale of residential real estate–homes, condominiums, and cooperative units.  There are many forms of contracts in use, but beware of the contracts that are called “standard contracts.”  Just because a contract is printed, from a computer or otherwise, does not mean that its terms are required or applicable to your transaction.  Many times there are conflicting terms that can cause your contract to be unclear and to be unenforceable.  If you want to get the benefit of your bargain, do not be talked out of using a lawyer.  When real estate transactions involve thousands of dollars, having a lawyer involved–before you sign any contract–is the smart decision to make.

 

Based upon over forty years of experience as a real estate attorney, here are my suggestions regarding real estate contracts:

Use a lawyer–BEFORE YOU SIGN ANY CONTRACT!

  • If you are selling, have a provision that makes the Buyer purchase the property “as is.” This means the burden is on the Buyer to conduct a due diligence and necessary inspections. However, sellers must disclose defects that they know about.
  • If you are buying, make sure to have the right to conduct complete inspections and then get those inspections done by skilled inspectors.
  • A real estate broker or salesperson is interested in making the deal close, so that they can get paid. Your attorney’s job is to see that the terms of your contract are the same as the deal that you intend. That is a BIG difference.

 

Contracts should contain the terms that exactly match your agreement.  Beware of the so-called “standard” contract; cross-out what you do not want and put in what you want.  Just because it is printed does not mean that it cannot be amended.  If you have questions or concerns about signing a real estate contract in the Fort Lauderdale, Broward County, Florida area, call Kim Douglas Sherman, Esquire, at (954) 489-9500.  Please look at our qualifications set forth on our website. Remember that once you have signed the contract, you are bound by its terms.  Get a lawyer to review the contract before you sign.

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A Power of Attorney cannot be used after the person has died.

This week I was contacted by a former client who presented a serious legal problem.  She had been living with her special friend, in the home that was in the friend’s sole name.  The friend had made a will leaving everything to my client.  Suddenly, the friend was stricken by a life-ending illness and was not expected to survive more than two days.  The friend was comatose and unable to act for himself. My client was distraught and more so, because she was afraid that creditors of the dying friend would take the house and remove her.  After a proper review this Probate Attorney in Fort Lauderdale, Kim Douglas Sherman, discovered that the dying friend had properly prepared and signed a Durable Power of Attorney that authorized my client to take any legal action that the dying friend could take.  Attorney Sherman explained that a Durable Power of Attorney was only effective while the person who granted the Power of Attorney was alive.  Immediate action was required.  A deed to the home was prepared, signed by the client using the Power of Attorney, and the deed was filed in the public records before the death of the person who granted it.  There were other important issues to be considered such as the delay the filing of an estate would cause, the tax consequences related to the transfer price, the claims of potential creditors, and the effect of the transfer on the existing mortgage.  But, the point of this blog is to make you aware that a Power of Attorney must be used, if at all, BEFORE, the death of the person who granted the Power.

 

Here are several important things to consider:

  • Have a will prepared and make sure that it is properly signed and witnessed.
  • Understand that to be effective, a Durable Power of Attorney must be in a proper legal form, must be properly signed, witnessed, and notarized.
  • Be aware that under the current applicable Florida law, a Power of Attorney cannot be contingent–that is– it can be used immediately by the person to whom the power is granted.
  • In order to accomplish an effective management of assets and debts when a person is unable to act for themselves, make a plan and talk to a Wills and Power of Attorney Lawyer.

 

If you have questions or concerns about Wills or Power of Attorney Law in Fort Lauderdale, Broward County, Florida, or you need a probate law attorney to discuss your legal options, call Kim Douglas Sherman, Esquire at (954) 489-9500.  Please look at our qualifications set forth on our website.  Do not let yourself or your loved ones face uncertainty.  I look forward to helping you and those you love.

 

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In Divorces, Look out for the Moving Target.

This past week I spent a considerable amount of time in an effort to help my client to see that there was not going to be any winning through the court system.  She was emotionally drained and physically ill from years of disputes with her former husband.  What became clear, from our point of view, was that the cost of the litigation was going to eat up and exceed the very best outcome which the Court would decree.  To her credit, my client listened to the advice of this Fort Lauderdale area divorce attorney with forty-years of experience, Kim Douglas Sherman, and she made the practical and proper decision to move forward with a bitter settlement.  To our surprise, having met the terms of the settlement as it had been communicated by the former husband’s counsel, new terms and conditions were raised by the former husband.  Even in agreeing to the original terms, the former wife was presented with terms that disemboweled the meager benefit of the potential bargain. After a long weekend, a re-analysis revealed that there was a new basis for agreement.  While the negotiation continues, the fight goes on–which means that everyone will lose, except for the attorneys.

 

Here are suggestions to assist in negotiations to avoid the “moving target”:

  • While it is enticing to negotiate verbally, obtain written terms at each step of the negotiations.
  • Make sure to take the time to consider each offer before responding.
  • Be practical and consider the costs, both financial and emotional, to failing to settle.
  • At the earliest opportunity try to be clear on what the other side actually needs to reach an agreement.

 

If you have questions or concerns about Divorce Law in Fort Lauderdale, Broward County, Florida, or you need a family law attorney to discuss your legal options, call me, Kim Douglas Sherman, Esquire at (954) 489-9500.  Please look at our qualifications set forth on our website.  Be clear about the terms of potential proposed settlements and avoid the moving target.  I look forward to helping you and your family.

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It is Important to Understand and Use Evidence.

“Evidence” is all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. Having practiced for over forty years as a Civil Law Attorney, I recommend that there are several types of evidence, which you should know about.

“Oral evidence” is when someone is speaking about the matter to be decided.  If the person testifying does not have personal knowledge–they did not see or hear what they want to testify about– their testimony is called “hearsay.”  Hearsay is generally not considered as evidence because there is a right to cross-examine the person who actually was the witness to the event. Testimony given by a witness with actual knowledge is good evidence, however, the way that they see or remember can be selective and biased.  If you can have the testimony of a disinterested person, who has nothing to gain or lose, that is the best kind of witness. As a Civil Law Attorney, I try to have the witness write down what they saw as soon as possible after the event in question.  Such a writing, itself, may not be admitted as evidence, but it can help the witness remember exactly what they saw or heard long after the event happened.  This is a technique called “preserving” evidence.

A picture is said to be worth a thousand words, and we all know that is true.I find that when I am considering the Civil Law burdens of proving a case—When it comes to preserving evidence, take the picture and take it before there is any change in the subject matter of the photo.  Fort Lauderdale Civil Law Attorney, Kim Douglas Sherman,says, “Take a photo of the accident scene, the crashed cars, and the wounds. Take the photo of the over-flowing sewage or the moldy, collapsed ceiling.  You get the picture?  If you do, then make sure that you keep the photo secure and preserved to use as your evidence.

“Preserve the actual thing that is in issue.” If something broke and caused injury or damage, try not to discard it.  Instead try to maintain and secure it in the same condition so you can, like this Civil Law Trial Attorney, present it to the Court and say, “This is it!”  When you put your agreements into writing signed by the agreeing parties, that “written contract” is the best evidence of the parties’ intentions.

 

Remember these important points about evidence:

  • Testimony from a good witness–get it in writing, too!
  • Take the picture
  • Keep the actual thing preserved, including contracts.

 

When you understand how evidence can help you, you put power on your side.

If you have questions or concerns about Evidence and Civil Law and Civil Trial Law in Fort Lauderdale, Broward County, Florida or if you need a civil law attorney, call me, Kim Douglas Sherman, Esquire at (954) 489-9500.  Please look at our qualifications set forth in our website.

 

 

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In Divorces, Look at the Big Picture.

We need to get along. I spent a whole day in trial recently so that a mother could vent her frustration with the children’s father.  She wanted to take away the father’s overnights with the children and she wanted to be the sole decision maker for the children’s major decisions.  The Judge concluded that she was the best parent of the two, but that was not enough to modify the shared parenting that had previously been ordered in the case.  Thousands of dollars in attorneys’ fees were spent, and what was accomplished?  The mother had no chance of “winning,” and she had been told that she would loose by the mediator. [The court regularly requires mediation before it will let a case go to trial.] I say that more dialog, and good faith “give and take” would be helpful in family law.

 

Here are suggestions to assist in negotiations:

! Use the bread, cake, and frosting method to prioritize your issues. The “bread” is what you absolutely need.  The “cake” is what would be a little sweeter to achieve, and the “frosting” is what you can do without.

! Stop blaming; look to the future.

! Try forgiveness.  Remind yourself of the good traits that attracted you to the other person initially. Verbalize the positives of the other person directly to the other person right at the start of negotiations.

! Understand that your situation and needs are exceptional to you, personally, but in the scope of the Family Law area, they are probably normal and common.

 

If you have questions or concerns about Family Law in Fort Lauderdale, Broward County, Florida, or you need a family law attorney to discuss your legal options, call Kim Douglas Sherman, Esquire at (954) 489-9500.  Please look at our qualifications set forth in our website: ShermanLegal.com.  Let us have less personal clashes and more “big picture”–this is what we need. Family law does not have to get messy. I look forward to helping you and your family.

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Where is the Will?

Recently, I was asked to serve as a personal representative [it used to be called “executor”] of a twelve million dollar estate.  The lady had died in a nursing home and had made a will that in large part was to benefit a religious organization and a good friend.  There was no doubt that she had made the will–BUT THE ORIGINAL WILL COULD NOT BE FOUND.  The effect of not finding the original will caused a huge departure from what the lady had expressed in her will.  Why? Because, when an original will is not found, and it had been in the possession of the person who made the will, under Florida law it is presumed that the person intended to revoke the will by its destruction.  In this case many distant relatives (who never knew the lady) surprisingly became beneficiaries of an intestate [no will] estate.

 

Based upon over forty years of experience as a probate attorney, here are my suggestions regarding wills:

  • Make a will, no matter what your age.  It is the surest way to assure that those who are important to you receive your bounty.
  • Use a lawyer to write your will; it is not expensive.
  • Use a lawyer to oversee the signing of your will, because there are legal technicalities that must be followed to have an effective will.
  • Keep your original will in a safe, fire-proof place, and tell the person who you want to be your personal representative of your estate where they can find the original will.

 

If you have questions or concerns about making a will or other important documents like Durable Power of Attorney, Healthcare Power of Attorney, or Living Wills in the Fort Lauderdale, Broward County, Florida area, call Kim Douglas Sherman, Esquire, at (954) 489-9500.  Please look at our qualification set forth at our website: ShermanLegal.com.  Do Not procrastinate.  Do Not let your relatives fight over your estate.  Do make your intentions clear.  Make a will and keep it safe!

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What Ever Happened to the Hand-shake Agreement?

By: Kim Douglas Sherman, Esquire.

Some of us remember a time when people gave their “word”, shook hands, and did what they promised to do. Unfortunately, that is not now and not here in South Florida. So, let’s talk about contracts–written contracts. They are good to have.

 

This is what is recommended for a good enforceable written contract. First, you should
identify the exchange of something of value. For example, you promise to pay a certain sum and the other person promises to do something in exchange. Second, the agreement must contain all of the essential and important terms. What terms are “essential” will vary depending upon the nature of the contract. Third, both parties should sign the document. Simple, it works. How about some bells and whistles?

If time is important to your agreement, you should specify when it is to be performed and what happens if there is delay. You would not want to pay for hurricane shutters in January and not have them installed before the hurricane season. I like to ask the salesman to tell me when I can expect my job to be done. Then, I ask what is the absolute latest that the job will be done, and I insist that we put that “latest” date into the contract with some appropriate provision for failure to meet that “essential” term. If you follow this tact, you will certainly get the “feel” of whether you will be getting what you expect.

 

Written agreements are not just for goods or services, they are very important to
relationships. For example, two good friends want to have a company formed for their new business venture. Just having trust in each other will not answer the issues raised if one dies or becomes unable to work in the business or if one wants to sell their share. Those are the kind of “essential” terms to be addressed in a good partnership agreement. The best working partnerships are founded upon a solid agreement.

Your rights to enforce your agreement should also be part of the contract. Consider
putting in a right to receive interest for sums not paid on time. Put in a provision that the
prevailing party should recover their attorney’s fees and court costs. Holding back money and not paying before you receive your goods or services is one of the mightiest ways to get performance by the other party. Of course, there is no substitute for doing your homework. Take the time to make a reasonable investigation of the person or company with whom you intend to contract.

We have only touched the surface on legal matters relating to contracts. If the deal is
important to you, it is important enough to have your lawyer take a look…
before you sign!

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Accidents Happen to People Like You!

By: Kim Douglas Sherman, Esquire

The insurance companies have done a very good job convincing the public that lawyers are to blame for higher insurance premiums. It is not the legal community that is the cause of crashes, falls, and professional malpractice — it is carelessness. Let us start with the practical fact that people make mistakes, and their mistakes cause damage and injury to themselves or others. As a litigation attorney for over thirty years, I have learned that a great many conflicts can be resolved without attorneys. Sometimes it is as simple as just saying “sorry,” acknowledging the damage, and paying for the damage caused. When the damages are just too great, that is when you need to have adequate insurance. You should carry enough insurance to protect your assets in the event you cause the damage. What people in South Florida often ignore, is that so many people have no insurance to pay for their mistakes, and those same people have insufficient assets from which victims of their mistakes can be paid. This is really the main point of this article.

 

Florida applies “comparative negligence” in determining how much someone may recover in an accident claim. It is really a logical concept. For example, if someone trips over an uneven walkway, you could say that the person who tripped might be fifty percent responsible for not watching their feet, while the owner of the property is responsible for the other fifty percent of fault. Using that example, if the injuries suffered equal $10,000, the person who was hurt would be entitled to $5,000. For motor vehicle accidents, Florida adds the concept of “No Fault.” In simple terms, even if a person is one hundred percent at fault, they cannot be sued for the victim’s pain and suffering, unless the damage caused is permanent injury, scarring, or disfigurement. The state requires every driver to insure themselves for at least $10,000 of their own damages; that is called PIP, or personal injury protection. The “penalty” for not carrying the PIP is the loss of the “permanent injury” requirement from being sued; you are subject to what we used to call “nuisance claims.” If a driver causes a crash with injuries and does not have liability insurance, the state will suspend the driving privilege until insurance is obtained and the damages have been paid. It is clear that in Florida, there are too many uninsured drivers, who just don’t care.

 

You should have enough insurance to cover any damage that other people may cause to you. Make sure to buy uninsured/under-insured motorist coverage. Elect medical payment coverage to supplement you deductibles. Seriously think about how much money you might need if someone damages you. In Florida, it is not “if” you will be in an accident, but “when.”

 

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