Author: grpllaw

New Year, time to get a Will, Trust or Both?

by grpllaw, posted in GRLaw General

Who should get a Will?

Most people should take the time to prepare a Will to make it easier for loved ones to inherit. A Will is a document which is witnessed and notarized and puts forth on paper the last wishes of the deceased. The Will explains who are the beneficiaries (persons inheriting), who may not inherit, who the trustee (person administering the Will) is, funeral arrangements, bank account information, property, personal affects’ and who to give them to, along with other important information the family should know about the deceased. This document is used whenever a probate is started in court and is the basis of the proceedings in order to transfer property to the beneficiaries.

Who should get a Trust?

A Trust is not for everyone, but if you own property it is a better way of transferring the property without having to open a probate upon the death of testator (person who created the Trust). A Trust like a Will has beneficiaries, a trustee to manage the trust and other similar language to a Will. The difference is a Trust is sort of like a company, it continues to live after the decedent’s death and makes the transfer of property much easier in that it does not involve the court system or the filing of a probate. A Trust also allows the decedent to control the assets for the beneficiaries even after death in providing time periods or rules for the the beneficiaries to inherit the assets of the Trust.

Should you have both, a Will and a Trust?

Yes, a Will and Trust together can be the best combination to insure a smooth transition for loved ones to inherit without the chance of infighting between the family by having a clear understanding of what the decedent wanted to happen after his or her death and an easier transfer of the assets. A Trust can also provide asset protection.

When should I prepare a Will and/or Trust?

Now, don’t wait, this is the beginning of the year, get organized and prepare your Will and Trust now so you are ready for the future.

Has Your Business Made a Claim or been Denied for Business Interruption Insurance, Let us Help!!

Featured by grpllaw, posted in Covid-19

 

Business Interruption Coverage

Business Interruption Insurance or contingent business interruption coverage is a type of policy which covers obviously interruptions in your business.  Business interruption coverage is often part of a commercial property policy and is not usually sold independently.  This type of insurance policy covers against economic losses resulting from a business not being able to operate due to one of the covered events listed in the policy.  Your business interruption insurance policy should list or describe the various types of events that qualify your business for a claim.  I am positive that no policy will list COVID 19 or the Corana Virus Pandemic specifically as a cause for a claim, instead an argument must be made as to why the policy and those provisions which apply require the insurance company to provide coverage.  Therefore, it is important to have your policy reviewed by an attorney to determine whether a claim can be made under the existing terms of the policy.

Viruses like COVID 19 or Corona Virus

Viruses or bacterial outbreaks are typically not insured unless specifically added by an endorsement which is basically an add-on provision to the policy.  Some newer policies even specify and exclude viruses and disease expressly as insurance companies saw claims in other parts of the world during the SARS and other virus or bacteria outbreaks.

What do you have to show to get coverage?

Business interruption coverage requires a showing of losses linked to an event that is covered under the policy.  It can get complicated when you have multiple causes, for instance, the Corona Virus and the building or shopping center being forced to close and whether it is deemed covered or uncovered under the policy.   A business interruption event is usually defined as a physical loss (possibly destruction of merchandise) in response to a physical event (natural disasters or theft).  With that said, in 2002-2003, the SARS outbreak led to million of dollars paid by insurers, including a $16 million dollar claim by the hotel chain Mandarin Oriental International.  As such, the requirement for physical damage was weakened by cases such as the Mandarin’s and opened the door to making legal challenges.

Business interruption policies normally include an endorsement excluding coverage for viruses or epidemics but more recently there have been some policies which have pandemic specific coverage for losses as a result of government mandated closure and diminished revenue as a result of quarantine.  For instance, in England the Wimbledon Tennis tournament chose to cancel its tournament completely instead of postponing because in part they had a pandemic specific policy which provided for more than $200 million dollars in coverage.

There has been a public outcry for insurance companies to cover Corona virus related claims for business interruption.  President Trump recently chimed in suggesting that insurers should pay or encouraged them to pay some business interruption claims related to the corona-virus pandemic.  Several states have introduced bills to retroactively protect businesses and require insurance companies to cover claims including nullifying viral exclusion clauses.  These bills are far from being passed and will most likely produce heated debate in government chambers and if passed will produce significant legal challenges.

Looking at the SARS epidemic for some clarity, policy holders at that time argued that government closures constitute “physical damage,” in that businesses were forced to shut down and therefore the policies should cover there losses.  Case law from the SARS epidemic seems to suggest that the courts will side with policy holders or at least are the sympathetic favorite.

Conclusion

Business interruption claims based on closures for COVID 19 OR Corona Virus will receive significant blow back from the insurance companies and will definitely be an uphill battle for businesses making claims.  Depending on the individual policy, a claim may be worth it for the business depending on the terms and the arguments that can be made.  At the very least, you should have an attorney review the policy to make a qualified analysis.  The attorneys at our firm are ready, willing and able to review your policy and provide a free legal review.

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Javier L. Gonzalez, Esq.

Contact me at:  Jgonzalez@gr-law.net

 

RENTING YOUR HOME ON AIRBNB OR OTHER RENTAL WEBSITE IN THE FLORIDA KEYS OR ELSEWHERE, “BEWARE” OF HEFTY FINES FOR MUNICIPAL ORDINANCE VIOLATIONS AND TAX REPORTING REQUIREMENTS

by grpllaw, posted in Real Estate

Renting on websites like Airbnb, VRBO or other online rental sites has become very popular for homeowners with properties in popular destinations like Florida. The sites are easy to use and setup for renting but usually don’t tell you very much about your particular state, local or community restrictions or the requirement of collecting state and county taxes. Many homeowners simply put their homes on these websites without being informed or doing their own research and then later receive a notice that they are in violation of state, city, county or association ordinance or law. It is not always easy to find out if you’re in compliance and it takes a bit of research to determine if you are truly ready to rent your home on a rental website.

As an example I will use the Florida Keys in Monroe County, Florida which is a popular tourist area but this example will apply in some way to most locations. If you want to rent a home in the Florida Keys you have to first be aware of its location to determine what length of time you are allowed to rent. Buried in the county’s website is a map with color shading and codes which you have to decipher to determine what length of time your location is allowed to rent. This determination is crucial as to whether you can even advertise or rent less than the restrictive 28 day limit imposed by Monroe County Code 134-1 (k). The code is confusing and arbitrary in that it applies to certain areas and not others and basically has the effect of pit falling homeowners into violation that have not properly researched the ordinance and its restrictions. In certain areas like Islamorada and Marathon for instance, you can rent for less than 28 days but not less than 7 days. As an owner, the disparate treatment between owner’s property rights to rent seem unfair where some property owners just because of their location have a further right to the use of their land than other similarly situated homeowners in the general area.

The county has investigators combing rental websites and posing as interested renters and if your home is simply advertised for nightly rentals (whether or not it is being rented on a nightly basis) the county will claim a violation of the code by merely “advertis(ing) or hold(ing) out for rent.” Advertising alone according to the code is sufficient for a code violation. The county doesn’t send first time violators a courtesy notice for compliance, instead it sends a violation notice and hearing date to assess a hefty fine. The Board of County Commissioners has developed or internally agreed to the imposition of a fine for first time violators by multiplying the nightly advertised rental rate by 30 (30 days of rentals) which in most cases amounts to thousands of dollars in fines for first time violators. The Monroe County website seems to bury any information as to rentals, in its “Links for Residents” page and it fails to provide any useful information for homeowners who want to rent their homes. You have to know that on the code enforcement page they have something called “Vacation Rental Program” which may or may not apply to you depending on the location of your home to determine what applies to your situation.

Fines Imposed for Violation of Ordinance

As you can imagine, the number of homeowners who are first time violators is enormous and the county holds hearings where the room is filled with first time violators who look like dear in the headlights, the county attorney after hearing the evidence presented by the investigator recommends to the magistrate judge the imposition of the hefty fine and the magistrate judge finds the homeowner in violation and imposes the hefty fine or reduces somewhat the fine as he/she sees fit. The practice of imposing these hefty fines for first time violators in my opinion is as a revenue stream for the county which I am sure represents millions in revenue and is why they do not provide first time violators with a simple notice for compliance and why the information is buried on their website. I am sure most first time violators would comply with the ordinance if they were simply noticed for non-compliance.

Ordinance History

The county’s stance and the history behind the ordinance seem to be that the 28 day restriction was imposed to protect neighborhoods from the impact of transient tenants on the surrounding area including the environment and to provide affordable housing. If this is so, why doesn’t it apply to every single residence in all of Monroe County. This claim is a falsehood in that the properties are meant to be occupied at all times by the number of tenants the property was designed to hold and permitted by the county for its impact to the surrounding area. I have found no evidence which shows that the cost of housing is reduced or more affordable because this ordinance is in place. Homeowners can find many more tourists/renters willing to rent for a shorter period of time and pay a higher rate than renters willing to rent for a minimum of a month at a lesser rate. The Florida Keys is constantly advertising to bring in more tourism, these homes are perfect for short term visitors who are seeking the comforts of a home which often times is more affordable than a hotel. Allowing shorter term rentals would make the area more alluring to visitors and more beneficial to the surrounding businesses in the area and generally more tax revenue for the county. Most short term renters in the Florida Keys are looking to stay for a few days maybe a week and enjoy the various water activities in the area and the local dining and shopping.
Whether the imposition of the county ordinance is a restraint on a homeowner’s rights or whether other similarly situated homeowners are being treated differently by not having to comply with this ordinance or whether this ordinance serves to protect the surrounding neighborhoods or provide more affordable housing or whether its true purpose is to lessen competition with hotels are all worthy debates which should be further discussed and possibly changed by the voters of Monroe county.

State and Local Taxes

In Monroe County, once you determine whether your property falls under the 28 day ordinance, your not ready to rent, you must then determine whether Airbnb or other advertising company is paying the occupancy taxes of the state and any local taxes. For instance, Airbnb on its website states that it is paying the state and local taxes for the property. If you look at the setting for Gross Earnings on the Airbnb tab under “Progress” and “Transaction History” they will provide you the occupancy tax that they are collecting and paying on your behalf. Normally, the Florida Department of Revenue requires you to register and pay this tax annually, quarterly or monthly, when I inquired as to registration, a representative stated that since Airbnb was paying directly, the requirement to file and register was basically waived but you could register if but would not need to file. I suggest calling the Florida Department of Revenue and the Monroe County Tax Collector’s office and confirming your tax filing requirements before placing your property for rent to make sure you are in compliance.

Conclusion

As described in the example above with the Florida Keys, it is imperative that you do the necessary research before placing or having someone place your property for rent online as you could be heavily fined for renting or even just advertising for rent in places like the Florida Keys. Also, don’t forget to contact your state and local taxing authority to make sure you are in compliance with any reporting requirements. If you have any questions or have received a notice please don’t hesitate in contacting our offices.

Getting Married, Congrats! Do you need a Prenup? Yes, for these 5 reasons!!

by grpllaw, posted in GRLaw General

Div Blog 8-30-17

After she or he said “Yes”, the planning of the wedding and craziness begins.  The couple is in love and looking forward to their future together.  Couples should see marriage as a contract and that it has a business aspect to it, just like when you buy a house or a car, you sign a contract.  Most contracts contain what you can and can’t do and the consequences for breach of the contract.  Marriage contracts do not have any terms or conditions and only a prenuptial agreement can specify what happens if the parties divorce.  Most couples don’t want to think about divorce, but almost 50% of first marriages end up in divorce, flip a coin, its 50/50.  Whether you have assets, money, or something to protect or you are just starting out and have nothing, you should have a prenuptial agreement from G&R Law for these 5 reasons:

  1. Prenup will explain how everything is divided in the event of divorce or separation;
  2. Prenup saves money in legal fees in divorce as everything has been agreed to ahead of time;
  3. Prenup will specify whether someone will have to pay alimony (money paid by one party to the other for a period of time);
  4. Prenup will specify who lives in the home if the parties separate or divorce;
  5. Prenup insures a peaceful transition when the marriage does not work out, the parties may even stay friends.

If you have questions regarding the use or construction of prenuptial agreements or postnuptial agreements, please contact G&R Law, we are a law firm in Coral Gables, Florida.

Does your contract contain a dispute resolution clause? If so, do you go to court, mediation or arbitration? What does it mean?

by grpllaw, posted in Contract

Before you sign a contract, take a look at the section regarding dispute resolution.  This usually is a section which discusses what happens when a dispute arises between the parties and where and how they resolve their issues.  Meaning, if we don’t agree or their is a breach of contract do I just sue, mediate or arbitrate.  Most attorneys who write contracts don’t litigate or spend much time thinking through the dispute resolution process or they write in such a way where it benefits only their client.  Its up to you to know and seek legal advice so that you know what your signing and how you will resolve disputes when they arise.

Just so you are aware of the differences between going straight to court, mediating or arbitrating disputes, I am going to simplify for the sake of the length of this article what each means as you could go into depth in each of these areas.  If you don’t have a clause of any kind regarding dispute resolution in your contract and someone breaches the contract, the aggrieved party does have recourse, he/she can simply file a lawsuit in court.  Lawsuits are expensive and they usually mean that the parties are no longer working together and are in a major dispute which can only be resolved by a judge or a jury.  Sometimes its prudent to include a mediation provision which allows the parties to meet and have a mediator try and resolve the dispute before going forward into court and filing a lawsuit.  The beauty of mediation is that it is non-binding, the parties can reach a resolution regarding the dispute at mediation or agree to disagree.  If they agree at mediation the parties may move forward working together and the contract may go forward.  Arbitration is a replacement for the use of the public court system, basically the parties can stipulate in a dispute resolution clause that they elect to have disputes determined by an arbitrator, depending on the complexity it may be one or three arbitrators.  Some of the advantages in using arbitration are that the disputes remain private, the arbitrator or arbitrators are chosen by the parties and usually have knowledge of the subject matter, and the arbitrators are more efficient and actively involved in the resolution of the matter.  Obviously, this comes with a price, generally arbitration is more expensive than the public court system as the parties pay for the services of the arbitrator, his staff, and the arbitration company which governs the arbitration.

Its important to review and receive the proper advice when it comes to the dispute resolution section of a contract, pay attention to the law that is applicable, whether the law of your state applies, where venue or the place where the dispute will be litigated is stipulated, sometimes it may be thousands of miles away, talk to your lawyer regarding whether your agreement should include mediation, civil court, arbitration or a combination to better suit resolution of disputes that may arise.  The best time include language for dispute resolution is before the dispute arises!!!

Careful with Commercial Lease Agreements!!

by grpllaw, posted in GRLaw General

As a new business owner or entrepreneur, your excited to start your business and build out your dream location and begin to sell your services or merchandise.  Before you sign the lease that was given to you most likely by the landlord for that new store or office you should keep in mind that it was most likely written to protect the landlords interests and not you as the tenant.

Commercial lease agreements are typically lengthy and wordy documents and provide for all manner of issues related to the premises.  Aside from providing the stipulated rent and other common provisions, they include topics such as who is responsible for the maintenance of the building, who will pay the property taxes, etc.  It is important to review very carefully these agreements to insure that you as the tenant are aware of your responsibilities.

Did you know that:

  • You can negotiate with the Landlord for tenant improvements in the form of monies provided by the Landlord to be used for the build out of your location;
  • You can negotiate an exit strategy in the event that your business does not do as well as you hope;
  • You can negotiate when your lease starts, meaing not when you sign but when your are actually ready to open, the allows for you to make your improvements or remodeling to the location without having the burden of making lease payments;
  • You can negotiate the rental increases.

Tenants should be knowledgeable about what they are signing, Landlord’s typically want the business owner to sign a personal guarantee when entering into a lease, this can be problematic when the lease contains an acceleration clause which allows for the Landlord to collect the remaining balance of the rental term and personally sue the guarantor for payment.

It is important to have these complicated commercial leases reviewed and negotiated prior to signing by an attorney who is knowledgeable in the area, it will be the best investment your new business can make.

 

The Cost of Waging War in Divorce!!

by grpllaw, posted in GRLaw General

Sometimes husband and wife get caught up in the moment and lose perspective as to what is important, if your headed for divorce and you know there is not other alternative, you should keep a few things in mind.  In a divorce, the parties should be thinking of the most efficient way to break free from each other but often times the parties become more entrenched by opposing each other in every aspect of the divorce causing legal fees to go up and up and ultimately just prolong the inevitable.  

I advise clients to only dispute the really important matters that absolutely cant be resolved by them and to try to find a happy median with most everything else. Basically don’t sweat the little stuff, its not worth it.

Florida, the state where I practice is a no fault state, meaning it does not matter why the parties are divorcing.  It does not matter whether the wife ran off with her assistant or the husband ran off with the tennis coach, whats important is that the marriage is irretrievably broken.  I know its hard, but you have to leave emotion out of a divorce and think logically, it doesn’t matter who gets the couch.

Whatever the parties had together is marital and will be split in half in whats called equitable distribution.  Equitable distribution is the division of both your assets (checking account, retirement account, house, pension, car, jewelery, etc) and your liabilities (mortgages, loans, credit cards, or other debts). If you came into the marriage with assets or liabilities these amounts should not be considered as part of your equitable distribution of marital assets.  Also, if you have received an inheritance and have not commingled it then this asset is also not marital.

War is costly, the more you know before you go into war the less you are likely to spend in needless attorneys fees and costs.  As an attorney, I will tell you that we are wired to want to fight for our clients and obtain a result which is in our clients best interest.  Sometimes its worth paying to fight a war and other times its not.  Your attorney should be able to tell you the pros and cons of litigating your matter as opposed to trying to find an amicable solution from the start. 

In a typical divorce, the petitioner or plaintiff who files for divorce will incur the cost of filing along with the cost of service of the documents on the respondent or defendant.  Basically, the husband or wife who files will incur a filing fee and service fee which is usually in the range of $500.00.  Attorneys in family cases usually charge hourly unless the divorce is amicable between the parties and the attorney can price a flat fee for what is called an uncontested divorce where all of the parties agree on the terms of the divorce.

If your in the process of divorce or are thinking about divorce, analyze what is important, minimize costs by only litigating whats truly important, it may be time sharing with your kids or some other matter that cant be resolved amicably.  Stay informed in your case, just because you have an attorney does not mean you shouldn’t be on top of whats going on.  Good luck, for any further questions or concerns, please feel free to contact me, Javier L. Gonzalez, Esq. at jgonzalez@gr-law.net. 

  

Como Prevenir el Secuestro de Niños por Familiares

by grpllaw, posted in Familia, secuestro
Imagínese que después de un divorcio extendido y agravante ya no puede comunicarse ni siquiera tolerar la presencia de su ex-pareja. Ahora para hacer la situación mas difícil todavía, tienen niños en común. Su ex-pareja, enojado y con malas intenciones, decide ir a la escuela del niño y usando la confianza y el cariño que le profesa el menor, se lo lleva a otra ciudad, condado o peor, a otro país.   

Como el padre del menor que ha sido secuestrado, su vida hasido destrozada y está desconsolado. Pero es entonces que debe mantenerse fuerte por su hijo y si toma los pasos siguientes, puede lograr que se lo devuelvan sano y salvo.
Inmediatamente llame a la policía; los oficiales pueden poner avisos que un menor ha sido secuestrado para intentarlocalizarlo antes de que el secuestrador haya ido muy lejos. También debe contactar a los familiares del secuestrador, muchas veces ellos tienen información que puede ayudar a la policía a localizar al menor. 

Si piensa que al niño se lo han llevado a otro país, puedeproceder a través del Convenio de la Haya sobre los Aspectos Civiles de la Sustracción Internacional de Menores. El Convenio tiene una guía/formulario la cual puede seguir un padre para que el país signatario le devuelva al menor.

Si contrata a un abogado, este puede poner una moción de emergencia con la corte para que se ordene a la policía querecoja al menor del sitio donde este pueda estar.  La moción incluye una descripción del niño, fecha de nacimiento, sexo, raza, nombre y posibles direcciones de su paradero.  El padre tiene que alegar que el menor está en peligro inmediato de ser herido o secuestrado en otra jurisdicción. La corte concederáentonces una audiencia sobre la moción y entrara una orden de entrega del menor de edad si opina que las alegaciones están correctas. 

Pero para prevenir estas situaciones, puede tomar algunos de estos pasos.  Trate de tener buena relación con su ex-pareja, no por ustedes, pero por el niño que tienen un común.  Si piensa que su pareja está considerando secuestrar al menor, empiece el procedimiento de custodia inmediatamente; sin esta orden no puede probar sus derechos. Cuando la obtenga quédese con copias certificadas en su casa por si acaso y notifique a la escuela, servicio de guardería (“daycare”) y médicos del menorde la existencia de dicha orden.

En conclusión, uno pone sus prendas y artículos de valor en una caja fuerte, el dinero en el banco y su casa está bajo llave.  Pero lo más precioso de su vida, sus hijos, pueden estar en peligro de ser secuestrados por aquellas personas a quienes ellos más aman. Pero si sigue estos pasos, puede asegurar que esto no le pase, y si desafortunadamente le llega a ocurrir, sabe lo que puede hacer y a quien contactar para solicitar ayuda.
El licenciado David Vega es un abogado con el bufete de Gonzalez & Rodriguez, P.L., localizados en 999 Ponce de Leon Blvd., PH 1135, Coral Gables, FL, 33134 y puede ser contactado por teléfono al (305) 461-4880.