Blog

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

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.

¿Se va a casar? Felicitaciones! ¿Necesita un Acuerdo Prenupcial? Sí! Por estas buenas 5 razones

Adobe Spark

Después de que él y ella digan “Sí”, comienza la planificación de la boda y la locura. La pareja está enamorada y esperando su futuro juntos, todo es color de rosa… Pero el matrimonio es como un contrato que tiene un aspecto comercial, igual que cuando usted compra una casa o un coche  usted firma un acuerdo de por vida. La mayoría de los contratos contienen lo que se puede y no se puede hacer y las consecuencias por incumplimiento del mismo; los contratos de matrimonio no tienen términos ni condiciones y sólo un acuerdo prenupcial puede definir lo que sucederá si las partes se divorcian. La mayoría de las parejas no quieren pensar en ello, pero casi el 50% de los primeros matrimonios terminan en divorcio, es como tirar una moneda al aire, hay 50/50 de probabilidades. Ya sea que tenga activos, dinero o algo que proteger o está comenzando y no aun no tiene nada, permita que G&R Law le redacte su acuerdo prenupcial. He aquí 5 buenas razones para ello:

  1. Explica cómo se dividirán los bienes en caso de divorcio o separación
    2. Ahorra dinero en honorarios legales en caso de divorcio ya que todo se ha coordinado de antemano
    3. Especifica si alguien tiene que pagar pensión alimenticia
    4. Define quién vivirá en el hogar si hay una separación o divorcio
    5. Asegura una transición pacífica cuando el matrimonio no funciona, las partes pueden incluso permanecer amigos.

Si tiene preguntas sobre el uso o la redacción de acuerdos prenupciales o postnupciales, por favor póngase en contacto con G & R Law, somos un bufete de abogados en Coral Gables, Florida.

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

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.

What is FL Homestead Exemption and how does it help O.J. Simpson?

After spending almost a decade in prison, Orenthal James Simpson, more famously known as O.J Simpson or The Juice, is looking at early parole as soon as October 1 for good behavior. At the moment O.J Simpson still owes a little over $30 million to the families of Nicole Brown Simpson and Ronald Goldman after being found liable for their deaths by a civil jury in 1997. It is reported that after being released from prison Mr. Simpson will find sanctuary from his creditors in the sunshine state of Florida.

The state of Florida has been notoriously known for protecting its citizens from creditors with its generous asset protection laws. In Florida your home is truly a castle, a castle so strong that not even the Dragon queen, Daenerys Targaryen, can penetrate its walls.  Article X, Section 4 of the Florida Constitution establishes this protection against creditors. Let’s break down homestead exemption and how it helps you as a homeowner. Under the Florida Constitution, Homestead exemption accomplishes three types of exemptions:

  1. Exemption from forced sale before and at death
  2. Restrictions on devise and alienation
  3. And exemption from taxation per Art. VII, Section 6 (will be discussed in greater detail in next blog)

First off let’s define what constitutes a Homestead. A homestead is the home where you and your family reside in, which comprises of land, house, and outbuildings.

The state of Florida prohibits creditors to force an individual to sell its homestead in order to pay back a debt, including their heirs. Unlike other states, Florida’s exemption from forced sale provides an even greater protection by not limiting the value of certain real property that can be protected from creditors.

In addition to protection against creditors, Florida homestead exemption protects the right of spouses/family members living in that homestead, regardless of whether you are on the title of that property or not. The restrictions on devise and alienation give the homestead owner a basic outline on how he/she can transfer their homestead. In life, restrictions on alienation impede the owner of a homestead of selling his property by requiring the consent from his/her spouse. In death, restrictions on devise impede the owner from devising his property in the event he is survived by a spouse and/or minor children.  For example, should a husband die and in his will leave his homestead to his mistress rather than his wife, the transfer would be denied by the court.  Or rather in life, should a husband decide to transfer his homestead to his mistress, he would first need the consent of his wife in order to do so. On the other hand he would be able to transfer his non-homestead property however and to whomever he wishes.

It is no wonder that O.J. Simpson finds comfort in knowing that a homestead he may acquire will be protected here in Florida. Should he buy and reside in a new home here in our sunshine state, his property and assets therein would be securely protected behind our Florida Homestead Exemption laws from his “creditors”, the families of his victims, Nicole Brown Simpson and Ronald Goldman. But while O.J. Simpson may think he’s outsmarted his creditors, in the end no one can run from the Dragon Queen, Daenerys Targaryen.

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

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!!

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!!

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

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 aniño 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 demenor 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.

Online Adoption Ads: In the best interests of the children?

Adoption is a vital process which aids children in finding caring foster parents and caring homes.  Unfortunately, some people cannot be counted on to look after the best interests of the children.

In Alaska, individual private persons were placing ads on Craigslist advertising descriptions of available children and their corresponding costs. At first glance this seems like a heinous and an obvious avenue for the exploitation of children by sexual predators or people seeking to throw them into child prostitution.

Proper precautions must be taken so that this does not happen.  While Alaska and several other states are silent as to who may place adoption ads online; Florida provides guidance on this issue.  Only licensed adoption agencies or attorneys working for said agencies may place these ads. This provides a greater degree of control as to who is advertising the availability of these children. 

Perhaps a happy medium may be reached where private individuals may still advertise but only with government oversight and/or the approval of an advertising agency. Needless to say, the actual adoption process would still need to go through the appropriate agency.  Much work is still needed from the Legislature to ensure this happens.   However, it is up to the public to vote for politicians who will be willing to listen and pass the appropriate legislation.

For more information, please contact David Vega, Esq. at dvega@gr-law.net

Revenge Porn: Are you an unknowing victim?

It has happened before countless times; a person leaves their cell phone unattended, it is found by someone else and pictures or sensitive information ends up online similarly to what happened recently with Kate Upton and Jennifer Lawrence
This time it happened again, only to a Middle school teacher in Georgia. She allegedly gave her cell phone to the students to use for emergencies and they instead posted online naked selfies of the teacher which they found in her phone. The teacher is claiming her cell phone was stolen by the students.  After being fired from her position, she plans on bringing forth a lawsuit against the school board likely for wrongful termination and against the students for their actions.
According to the law, the teacher has a right to privacy over her cell phone and its contents.  Furthermore, she has a right to privacy against the public disclosure of private facts (i.e. the naked selfies) which do not comprise a newsworthy event. While she may have been negligent in giving her cell phone to her students when she knew she had naked pictures within, the students violated her rights when they published the pictures. 
The students may face additional criminal charges stemming from a new bill, H.B. 838, which was recently signed into law in Georgia by the Governor making it a criminal offense for a person to post online a naked photograph of another adult without their consent. This “Revenge Porn” bill as it is colloquially referred to is being proposed in many states, including Florida, where it was approved by the Florida Senate unanimously but failed to make it to a vote in the House of Representatives. The inspiration for this bill is the revenge posing online of naked pictures of a previous significant other by their partner or lover after the relationship is over.  
While it may be too late for this teacher, this new law hopefully will serve to dissuade people from posting nude selfies of another person online without their consent. Notwithstanding, it is best to be extremely careful about where one leaves their phones containing private information and pictures.

For more information, please contact David Vega, Esq. at dvega@gr-law.net.