Business & Real Estate Litigation 

The trial attorneys at Bernhardt Law help business owners, real estate investors, and individuals protect their business, real estate and personal property interest.

Our business & real estate litigation practice areas include:

  • Land Disputes (Boundary Issues, Encroachments, Easements, Injunctions, Covenants Partitions)
  • Tax Certificates & Tax Deeds
  • Failure to Disclose Property Defects
  • Landlord/Tenant Issues
  • Florida Condominium Law
  • Mechanic’s Lien

  • Business Litigation
  • Estate Planning (Wills, Durable Power of Attorney, Healthcare Directive)
  • Toxic Mold
  • Bed Bug Infestation
  • Florida Deceptive Unfair Trade Practices Act (FDUTPA)
  • Federal & State Civil Asset Forfeiture & Seizure

 

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Land Disputes

Boundary Disputes

Disagreements over the location of a property line and inaccurate legal descriptions of a purchased property often lead to boundary disputes in Florida. Whether the disputes arise from the sale of a property, a fence that has encroached onto a neighboring property, a tree that has been planted or removed, or a new build that is beyond the property line, a professional should be sought out to analyze whether there is an infringement on you or your neighbor’s property, and a determination should be made of how long that infringement has occurred. Bernhardt Law real estate attorneys are skilled negotiators who can work with you to discover a compromise that can save you both time and money.

Additional land disputes the attorneys at Bernhardt Law can help you navigate include:

 

Encroachments

An encroachment occurs when any portion of land above or below the surface beyond what is described in a property’s deed is occupied by an individual. In these cases, there is not an agreement allowing the individual to encroach on your property, nor an easement, judgment, or decree giving title to the encroached land.

 

Easements

An easement is a legal right given to a person or entity to use property or land belonging to another person or entity for a particular purpose. An easement can be created by a written agreement, established through a deed, by regular usage of the property, by way of necessity, or by license or permission.

 

Injunctions

A lawsuit for an injunction may be brought in court should a landowner believe that an easement or right of way is being improperly imposed or misused. An injunction will prevent the improper use of the land, and a breach of contract claim may provide for an award of damages.
If you are facing an issue that arises from the ownership of your Florida property, call the experienced attorneys at Bernhardt Law to help you navigate your case.

 

Covenants

A property may be restricted to certain uses, or require specific actions be taken to the property by the property owner and may often be found in subdivisions and neighborhoods. For example, a restrictive covenant may prevent a property owner from turning a desirable piece of land into a subdivision. The Bernhardt Law real estate attorneys can help draft a declaration clearly outlining the rights, responsibilities, and restrictions of all parties involved.

 

Partitions

When joint property owners in Florida are in dispute over the management of the property, or whether or not to actually sell the property, one of the owners may bring a Partition Action against the other owner. A Partition matter is a civil lawsuit that serves to force the sale of the property under §§ 64.011-64.091, Fla. Stat. It’s important to note that those able to bring a Partition action include “any one or more of several joint tenants, tenants in common, or coparceners, against their cotenants, coparceners, or others interested in the lands to be divided.” § 64.031, Fla. Stat., and the lawsuit must be filed in the county where the actual property is located, despite the location of the owners. Ultimately, the court will decide whether to divide up the property and give each joint property owner a portion of it or whether the subject property should be sold, and will also decide each party’s entitlement to the share of sale proceeds and taking into consideration and the proceeds will be used to satisfy any mortgages, liens, and taxes and distribution will take into account any improvement or contributions made to the property such as mortgage payments or property taxes. Additionally, Florida partition actions take into account attorney’s fees which are specifically provided for in § 64.081, Fla. Stat.

Tax Certificates & Tax Deeds

Certificates & Deeds

Tax certificates will be issued in Florida by the taxing authority when the owner of real property fails to pay property taxes. In turn, these certificates are sold at public auction. It’s important to keep in mind that a tax certificate does not transfer any ownership interest in a property, but rather is a secured lien, similar to a mortgage. 

After a tax certificate has been outstanding for 2 years, the owner of the certificate may then begin an application for a tax deed, and all other outstanding tax certificates must be held by the applicant or the applicant must redeem the remaining outstanding tax certificates when applying for a tax deed. 

The tax deed is thereafter set to Auction once an application for tax deed is completed, and noticed to all interested parties. The winning bidder at auction is awarded a tax deed, which transfers the ownership interest of the property to the bidder.

Tax Deeds as Transfers

Ownership of the property transfers to the tax deed holder once the tax deed is issued. Once the tax deed is purchased, the holder gains the right of possession of the property. However, the holder must adhere to Florida law to pursue any evictions needed. 

In addition, owning the property through a tax deed does not generally provide you with an insurable marketable title to the property itself. In order to gain the right to sell the property with title insurance, it is necessary to file an action to Quiet Title.

The Necessity of a Quiet Title Action

A quiet title action seeks to permanently bar creditors, lien holders, mortgage holders, and prior owners from exercising their interest in the property. A Florida title insurance company is unlikely to issue a policy on a tax deed property without a quiet title action being first completed. If any interested parties in the title search process are found, they will be served with a copy of the Complaint to Quiet Title on the property, and will have a specified period of time to either respond to the quiet title action or dispute it.  Should the claim be disputed, the attorneys at Bernhardt Law will be prepared to advocate for your rights throughout the entire legal process that will follow. If the claim is undisputed, we will be able to proceed to the final judgment phase in which a court will certify that the title to your property is marketable. Essentially, the action to Quiet Title serves to protect the new owner of the property from any potential claims to the property. 

Failure To Disclose

Seller’s Duty to disclose under Johnson v. Davis

During the sale of a property, a seller’s failure to disclose any latent issues of which the seller was aware may result in serious legal consequences. However, sellers of Florida homes or properties are not held responsible for defects of which they have no actual knowledge. The Florida Supreme Court case of Johnson v. Davis, 480 So. 2d 625 (Fla. 1985) imposed disclosure requirements on a seller of real property by holding that when a seller of a home knows of facts materially affecting the value of the property, which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them.  This duty is equally applicable to all forms of real property, new and used.

Although sellers in Florida are bound by the law to disclose known defects, they often neglect to do so. If you feel that the seller of your home violated the duty to disclose known defects, the real estate attorneys at Bernhardt Law may be able to take legal action for you.

 

Broker Liability

The duty of disclosure announced in Johnson v. Davis extends to a seller’s real estate broker. In Goodman v. Rose Realty West, Inc., 193 So. 3d 86 (Fla. 4th DCA 2016), a purchaser of real property brought an action for fraudulent nondisclosure against the seller and the seller’s agent and broker. The court held that a broker could be liable to a purchaser for any fraudulent nondisclosure by the seller under a theory of agency law. Thus, the broker was a principal of the real estate agent and was therefore civilly liable for the tortious acts of its agent that were within the scope of the agent’s employment. This is true even where the agent’s acts or representations are found to be fraudulent or deceitful.

Whether you are a purchaser, agent or broker, you want an experienced real estate attorney, who is also a licensed Realtor, on your side. Contact the real estate attorneys at Bernhardt Law.

 

Buyers duties to investigate under Gilchrist Timber Co. v. ITT Rayonier, lnc.

The 1997 case of Gilchrist Timber Co. v. ITT Rayonier, lnc., 696 So. 2d 334 (Fla. 1997) determined the scope of a buyer’s duty to investigate any defects during the purchase of a property. The Florida Supreme Court in Gilchrist determined that the buyer does “not have to investigate every piece of information furnished;” rather, the buyer must only investigate “information that a reasonable person in the position of the [buyer] would be expected to investigate.” Id. at 339. 

Landlord/Tenant Issues

Florida law requires very specific timelines and procedures that a landlord or property manager must comply with in attempting to evict a tenant and in order to avoid a dismissal of their case. Likewise, a tenant must also abide by certain timelines in order to prevent a default and grant of an eviction against them. The eviction attorneys at Bernhardt Law are here to help guide you every step of the way. Additional landlord/tenant issues we handle include the following: 

  • Failure to Pay Rent
  • Ejections & Unlawful Detainers
  • Residential & Commercial Evictions

  • Lease Drafting and Negotiation
  • Property Maintenance & Repair 
  • Implied Warranty of Habitability

  • Abandonment
  • Ground leases
  • Quiet Enjoyment

Florida Condominium Law

Whether you are an HOA or condominium owner, you may be faced with issues concerning the Florida Condominium Act, disaster recovery, hurricane claims, water and mold damage, injury claims in common areas, covenant enforcements, budget increases, enforcement claims, leasing restrictions, and lien foreclosures. Whether you are forced to deal with the many issues an HOA or condominium owner often faces, or need help with drafting real estate documents (i.e. covenants, bylaws etc.), you want the experience of Bernhardt Law’s real estate attorneys on your side.

Mechanic’s Liens

The Florida legislature enacted the Florida Construction Lien Law in order to protect the rights of all parties to the construction process, including owners, contractors, and subcontractors. Bernhardt Law helps to draft and interpret of all forms contemplated by the Florida Construction Lien Law, including:

  • Notices of Commencement
  • Notices to Owner
  • Sworn Statements of Account

  • Lien Releases
  • Payment Bonds
  • Claims of Lien

All parties to a lien claim must understand that any failure to meet the requirements of the Florida Construction Lien Law will potentially defeat a lien claim. Thus, it is imperative that all forms be completed with attention to detail, referencing the legal description and address of the property at issue, and the exact amount of the lien claimed. Mistakes or omissions in the address, legal description, the basis for the claim, signatures, notarizations, and/or the exact amount owed on the claim can all jeopardize the claim for either party. No matter which side of the action you find yourself on, the construction litigation Bernhardt Law attorneys are here to help.

Toxic Mold & Water Intrusions

Toxic Mold

Water intrusions, busted water pipes, roofing damages, defective construction and even faulty dehumidifiers can all lead to the occurrence of toxic mold from excessive moisture in your home. The resulting toxic mold can ruin drywall, and trigger health problems. “Toxic mold” refers to molds that produce mycotoxins which are naturally occurring toxins produced by certain molds (fungi). Exposure to high levels of these mycotoxins have been known to lead to serious illnesses. Toxic mold is more hazardous than typical mold or mildew growth due to the mycotoxins produced by the mold. Keep in mind that while mold is usually black or green in color, it is usually only identifiable by trained professionals.

There are generally two forms of toxic mold claims: 1) Damage to your property that has been caused by toxic mold or 2) Personal injuries due to toxic mold exposure.  

 

Water Intrusions

Water intrusions can result in catastrophic damages to your home or business, and result when unwanted or undesired water or moisture leaks into your home and results in structural issues, wall damage, and damages to property foundations. Your homeowner’s insurance may be responsible to pay for the cleanup of the water intrusion, the physical damage to your home and any resulting mold problems and the homeowner may be entitled to damages for personal injuries that result from mold exposure, including illness or aggravation of an existing illness. These damages may include 1) the cost to remediate the mold 2) any medical care resulting from the mold 3) lost wages 4) replacement cost value of the damaged personal property due to mold and 5) pain and suffering.

If you are a tenant who has suffered from exposure to toxic mold in a rented condominium, apartment, or house, and if  you have renter’s insurance, the insurance company may be responsible for the cleanup of the water damage, mold, and any damage to the your personal property and furniture, and may also be responsible for damage for personal injuries caused by the toxic mold.

Let the real estate attorneys at Bernhardt Law take care of your toxic mold issues and water intrusion issues.

Bed Bug Infestation

Bed bug attacks have resulted in physical and psychological injuries, lost wages, medical bills, damage to personal property, remediation expenses and extermination bills. If you have been bitten by bed bugs due to the negligence of a property owner, resort, motel, apartment, assisted living facilities or any other type of location you have stayed, you may be entitled to seek monetary compensation for your damages. Contact Bernhardt Law today to help evaluate your case.


Business Litigation

Whether you are forming a new business, running a small company, or are the CEO of a large corporation, we focus on finding proactive legal solutions that make achieving your business goals possible.

  • Business formation – Whether you have just decided to start your own business, or have had a long standing business with several partners, Bernhardt Law’s business attorneys can help to navigate you from beginning to end.

     

  • Business contracts – Before you agree to sign any type of business or partnership agreement, there are a number of items that are important to ensure that what you are signing is not only lawful and enforceable, but is fair. The business attorneys at Bernhardt Law can review your legal contracts to verify that your interests are protected.
  • Business litigation – Whether you have discovered that your business partner is fraudulently using or misappropriating business profits for personal gain, or you have been accused of the same, you want aggressive and experienced trial attorneys to represent you every step of the way. Bernhardt Law’s litigation attorneys are here to help.
  • Business succession – Businesses can be fluid entities, often going through various stages of growth and present unique challenges. A business succession plan will address what happens to your business in the event of an untimely death, how to transfer your business to a new owner, and how to officially retire from your business. Bernhardt Law’s business attorneys will help you prepare for all stages of your business with confidence.

Contact the business litigation attorneys at Bernhardt Law to help you achieve your business goals.


Estate Planning

Planning and preparation are important elements of ensuring a successful financial future for your family. Creating an estate plan, drafting a will, and setting up a revocable living trust in advanced will ensure that you and your family are prepared to receive the care you deserve.

  1. Durable Power of Attorney: A durable power of attorney (DPOA) remains effective even if a person becomes incapacitated. In order to be effective, the DPOA must be signed by the principal and by two witnesses and be notarized. Keep in mind that as a DPOA you are an agent, which is a fiduciary of the principal. You are responsible for acting in good faith, preserving the principal’s estate plan, and may not delegate authority to a third party. Under Florida law, multiple agents are presumed to be capable of acting independently. An agent must also keep records of all receipts, disbursements, and transactions made on behalf of the principal.
  2. A Healthcare Directive: A Healthcare Directive is  a package of documents (Combination Living Will, Healthcare Surrogate and HIPPA Release) intended to cover an individual’s medical decisions and wishes for medical treatment should that person  no longer be able to make those decisions for themself, i.e. in the event of incapacity. These documents are also known by a number of other names, including a “Florida Medical Directive” or “Florida Advance Directive” or “Florida Advance Medical Directive” or “Do Not Resuscitate” or “Medical Power of Attorney”.

     

Components of the Healthcare Directive

  1. The Living Will – A Florida Living Will is an oral or written statement that expresses the kinds of treatment options that is wanted in the event that person is no longer able to decide for themself.  The living will often function as a “do not resuscitate” in dire medical circumstances.

     

  2. Designation of Healthcare Surrogate – Also known as a “Healthcare Power of Attorney”, the purpose of this document is to designate the person(s) who is empowered to enforce the medical wishes as expressed in the living will.

  3. HIPPA Release – Since federal law protects the privacy of individuals concerning their medical records, a HIPAA release document is required to release medical records to third parties, including family members. Under Florida law, a HIPAA authorization cannot be effective for more than 24 months, so the HIPPA release will need to be updated at that time.

The estate planning attorneys at Bernhardt Law are here to help protect you, your family and your assets.

Additional Areas Of Practice

Florida Deceptive Unfair Trade Practices Act (FDUTPA)

The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) as found in Florida Statutes 501.201-501.213 protects consumers and competing businesses from anyone who engages in unfair methods of competition or deceptive practice in any trade or commerce. Such trades may include

  • Automotive Sales and Service Centers
  • Exterminators
  • Sellers of Travel Packages
  • Resellers of Timeshares
  • Sellers and Installers of Flooring
  • Sellers of Prepaid Calling Cards
  • For-Profit Schools
  • Data Security Firms

False and misleading tactics from these industries may be designed to trick a customer into paying more for goods and services than was advertised, or into paying for goods and services that they never received.

FDUTPA was designed to encompass a broad spectrum of deceptive and unfair conduct such as the following

  • “Bait And Switch” or Other False or Misleading Advertising
  • Misrepresenting Used Goods as New
  • Falsely Claiming that a Vehicle or Product is in Need of Repair or Replacement
  • Slipping Improper or Undisclosed Fees into a Bill or Contract
  • Adding Unauthorized Charges onto A Phone Bill
  • Delivering Goods that were not Ordered and Billing unless the Customer Declines
  • Price Gouging After a Hurricane, Flood or During a State Of Emergency
  • Salespeople Misrepresenting their Authority to Negotiate Terms or Close a Sale

The statute of limitation for bringing a FDUTPA claim is four (4) years from the date of the event giving rise to the FDUTPA claim.  If you believe that there has been a violation of FDUTPA, contact the trial attorneys at Bernhardt Law to help evaluate your potential claim. 

Federal & State Civil Asset Forfeiture & Seizure

“Asset Forfeiture” refers to The Florida Contraband Forfeiture Act which allows state and federal law enforcement agents to seize certain assets and attempt to prove that that there is sufficient evidence that those asset were either used, or intended to be used, to commit a crime or are the proceeds of a crime. Such assets include the following

  • Cash & Bank Deposits
  • Motor Vehicles & Boats
  • Stocks & Bonds
  • Real Estate

An asset forfeiture case is a civil action held in civil court, with the state or federal government having a burden of proof and is a separate matter from any criminal case that may also have been brought against you.  Under Florida law, you have the Due Process right to challenge an asset seizure and make the Government prove that it is entitled to keep your property.

Some defenses the trial attorneys at Bernhardt Law may raise on your behalf are as follows:

  • Legitimate Source Defense
  • Innocent Owner Defense
  • Commingled Asset Defense
  • Notice Requirement Defense
  • Statute of Limitations Defense
  • Eight Amendment Excessive Fines Defense

If the Government proves its civil asset forfeiture case against you, your property can be sold at auction or used by the governmental agency that seized the property. The following are examples of assets forfeited relating to specific crimes:

  • Money Obtained in or Connected with Drug Trafficking Cases (i.e., Cocaine or Marijuana Trafficking)
  • Automobiles, Boats, Homes or Businesses Used to Commit the Crimes Of Drug Trafficking or Fraud Cases
  • Money Obtained in or Connected with Fraud Cases (i.e., Insurance Fraud, Mortgage Fraud or Medicare Fraud)
  • Money Seized in Money Laundering Cases
  • Automobiles, Boats, Homes and Jewelry Purchased with Money Obtained in Drug Trafficking or Fraud Cases.

After law enforcement has seized your property, you have the right to file a written request for an adversarial preliminary hearing. This request needs to be filed with the City or County Attorney within 15 calendar days of receiving the notice and must be made in writing by certified mail, return receipt requested. After the Government commences a civil forfeiture action, it is important to act quickly and retain an attorney to file a verified claim on your behalf and/or an administrative claim with the seizing agency. 

The trial attorneys at Bernhardt Law can help you properly file a verified claim which is distinct and separate from filing an administrative claim with the seizing agency under 18 U.S.C. § 983(a)(2). Let the civil asset forfeiture attorneys at Bernhardt Law defend your civil forfeiture action and help you get your property back.