Many homeowners associations and condominium associations in Florida will be greatly impacted by a Florida appellate court decision that was issued in May of 2015. On May 27, 2015, the Fourth District Court of Appeal, in the case of Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Association, Inc., No. 169 So. 3d 145 (Fla. 4th DCA 2015), interpreted the provisions of Section 720.3085, Florida Statutes, which allow a homeowner’s association to recover a portion of the past due amounts owed on an account in which title has been transferred through the issuance of a certificate of title (“COT”) in a mortgage foreclosure action, as being inapplicable where the association’s own declaration provides for a recovery which would be less than the recovery provided for under this section of the Florida Statutes.
While the Westwood Gardens case dealt with a third-party purchaser at a mortgage foreclosure sale rather than a situation involving the acquisition of title by a first mortgage holder, it appears the holding in that case would also apply in the case of a foreclosure sale in which the former first mortgage holder (or its assignee) becomes the owner.
Section 720.3085, Florida Statutes provides that in the event of the completion of a mortgage foreclosure action resulting in the issuance of a COT, the new owner will be liable for a portion of the past due balance that existed as of the date of the issuance of the COT. However, based upon the Westwood Gardens decision, this section will not apply unless the declaration for the association is silent, contains language which matches the language set forth in this section, or contains language which incorporates, by reference, the provisions in this section. The vast majority of homeowners’ association declarations I have reviewed over the past 25 years contain provisions similar to those that were found in the association’s declaration in Westwood Gardens.
While the association in Westwood Gardens was a homeowners association, it appears the holding in that case could also be extended to condominium associations.
As a result, all community associations should consider reviewing their declarations to determine if they contain provisions that deal with the right, if any, of the association to recover amounts that pre-dated the transfer of title, including a situation in which the transfer of title arises through the issuance of a COT from the purchaser at a mortgage foreclosure sale. The association should then consider whether to change that language (assuming the procedures for making an amendment can be satisfied), to allow for the recovery of amounts that pre-dated the transfer. The association could seek to change its declaration to provide for the same recovery as is available under Section 720.3085, Florida Statutes or Section 718.116, Florida Statutes, or it can seek to provide for recovery of amounts which exceed those available under the Florida Statutes.
Community Associations Have Standing to Assert Defenses to Mortgage Foreclosure Actions
When a community association acquires title to a property through the completion of a lien foreclosure action, it must then determine whether to oppose an attempt by a purported lender to foreclose superior mortgage on the property. Lenders have often argued, based upon certain Florida appellate decisions, that the association has no legal standing to assert defenses to a mortgage foreclosure action in situations in which the mortgage was executed by a predecessor owner. However, there now appears to be a recent appellate court case to support the position of a community association.
As far back as 2012, the Fifth District Court of Appeal, at least in dicta, stated that the issue of standing, as it relates to the right to challenge and/or defend against a purported lender’s claims in a mortgage foreclosure action, is not subject to a blanket rule and depends upon the relationship of the party challenging a mortgage to the subject property. Centerstate Bank Cent. Fla., N.A., v. Krause, 87 So.3d 25 (Fla. 5th DCA 2012).
In Centerstate, the court stated “Standing depends on whether a party has a sufficient stake in a justiciable controversy, with a legally cognizable interest that would be affected by the outcome of the litigation.”
The court in Centerstate further stated: “On the other hand, standing to contest the validity of a mortgage belongs to the mortgagor and to third persons whose rights or interests are adversely affected by the mortgage, such as junior mortgagees or creditors with an interest or lien in the underlying property.”
In the recent case of Tanner v. Bayview Loan Serving, LLC, 2015 Fla App. LEXIS 12027 (Fla. 5th DCA 2015), the Fifth District Court of Appeal, relying upon the principles of standing discussed in Centerstate, reversed the entry of a foreclosure judgment based upon arguments made by a junior lienholder, who asserted that the judgment was improper because the lender had failed to present evidence at a trial. The trial court had entered a judgment based upon a stipulation between the lender and the borrower/property owner.
In so doing, the Court recognized the right of a junior lien holder to challenge the enforcement of a first mortgage and to require that first mortgage holder establish its rights to enforce the mortgage and prove the right to recovery of amounts claimed to be due under the mortgage. The Court in Tanner (citing to Centersate) stated: “Third persons whose rights or interests are adversely affected by a mortgage, such as junior mortgages or creditors with an interest or lien in the underlying property, have standing to contest a foreclosure action brought by a party claiming a superior interest.”
Clearly, if a party holding a junior lien on property has standing to assert a defense to the enforcement of an allegedly superior mortgage, an owner of property, whether that person or entity was the owner when the mortgage was created or is a successor owner, would have that standing as well. An owner, even if that owner is a community association, clearly has an “interest” in the underlying property and would be adversely effected by a mortgage.
There is an inherent risk of liability that goes along with property ownership. You as a property owner could potentially be subject to tort claims stemming from activities that occur on the land. If the property were held in your individual name or in the name of your Revocable Trust at the time a tort claim was made and the claim resulted in a judgment against you or your trust, your personal assets, or the assets of your Revocable Trust, could be attached to satisfy the judgment. However, if the property is held in a separate LLC, only the property held in the LLC can be used to satisfy the judgment. This restructuring is advantageous to you because it would give you maximum protection for your personal assets.
This structure maximizes the asset protection for Corporations as well, because any judgment against one piece of real estate could only be satisfied by that piece of real estate and not the assets of corporation or the other pieces of real estate since they are in separate LLC’s.
Having each piece of real property in a separate LLC has advantages from a business standpoint in that it makes it simpler to bring in a developer as an owner of the real estate. Bringing in a developer as an owner when the real estate is held by an S corporation is difficult because an S corporation can only be owned by certain individuals and trusts, whereas most developers will be some form of business entity. However, any business entity can be a member in an LLC, and by having each piece of real estate in a separate LLC, you can bring in a developer as a member for just the one piece of property. Also, if you do bring a developer in on a joint venture, by the real estate being in an LLC, you have the flexibility to provide different allocations of distributions and taxes between you and the joint venture partner. This flexibility would not be available if the real estate was held in an S Corporation. Finally, when you decide to sell the real property you can sell the entity rather than selling the actual real property.
Each piece of real property in a separate LLC has advantages from an Estate Planning standpoint in that it makes it simple to transfer ownership. The ownership of real estate held by an LLC is represented proportionately by a member’s shares of an LLC. Rather than filing a new deed, members can transfer ownership of the property to their children by simply issuing them membership interest in the LLC. This makes gifting away interest in the real estate very simple to do. Also, it is easier to gift interest in an LLC than it is to gift away stock in an S Corporation, because an LLC has no restrictions on who can be an interest holder whereas there are limits who can be a holder of stock in an S Corporation. Therefore, each gift of stock out of the S Corporation would have to be analyzed to ensure it was going to an eligible S Corporation shareholder.
For Real Property currently held in your individual name or in your Revocable Trust, we suggest creating a single member limited liability company (LLC) for each parcel of real estate you currently hold. A LLC holding company should be created to be the single member of each of the LLC’s holding the real estate. You or your trust would be the sole member of the LLC holding company. You would still maintain control of each LLC holding the real estate because the holding company is the sole member of each LLC and you would be the manager of the holding company.
For Real Property currently being held in the name of a Corporation, we recommend creating a single member LLC for each piece of real estate and then having the Corporation contribute the real estate to the individual LLC in exchange for ownership interest in the LLC.
Any real estate that you acquire in the future should be held in a separate LLC with the LLC holding company as its sole member. Because of the business and estate planning advantages a LLC has over a S corporation, it is best to never acquire any real estate in a S corporation.
Cases involving undue influence often include allegations of diminished mental capacity – i.e. that the alleged victim was suffering from Alzheimer’s, dementia or another mental disorder – and therefore was susceptible to the influence of another. The fact that an individual was susceptible to undue influence at one period of time is not, however, be conclusive as to their state of mind on another date. See Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997). In Martin, court considered a will executed in August 1989 and a trust in May 1991. The Court held that that a determination the victim was susceptible to undue influence on one of those dates was not conclusive as to his state of mind on the other. As a result, litigants pursuing a claim for undue influence should be prepared to present evidence sufficient to raise the presumption of undue influence for each separate testamentary change or gift that is challenged.
Recently, a Florida court has approved of the use of an inference of undue influence where the influence did not relate to the testamentary change at issue. See Blinn v. Carlman, 159 So. 3d 390 (Fla. 4th DCA 2015). In finding that the plaintiff had proven undue influence in the execution of a will, the court relied on a voicemail which recorded the defendant exerting influence, in part, by disparaging the plaintiff. Although that conversation that was recorded did not relate to the changes in the decedent’s will, the court reasoned that “if appellant were so bold as to openly display such influence over [the decedent], then the court could reasonably infer that similar or greater influence was occurring in the dark during their marriage.” Id. at *3. Thus, it may be possible to prove undue influence through generalized evidence showing a pattern of influence that is not directly tied to the challenged testamentary changes or gifts during the time those changes or gifts were made.
With summer having just ended, now is the time to discuss the importance of saving for retirement with your children and grandchildren. Many parents and grandparents will have wanted their children and grandchildren to work over the summer so that they appreciate the effort it takes to earn an income. Therefore, many will have worked a summer job; that is by itself an important step to understanding the value of the dollar and the rewarding feeling of earning one’s own income. The money they have earned is usually spent (or saved) however they would like. While there is nothing wrong with this, the savvy parent or grandparent will take this opportunity to shift their focus to their future. By creating a custodial Individual Retirement Account (an “IRA”), the child or grandchild that is a minor may begin to learn about saving money, investing assets, publicly traded markets, the benefits of income tax deferral, retirement matching programs, and the time value of money.
So long as the minor has earned income for the year, they may create and/or contribute to their own IRA (either a Traditional IRA or a Roth IRA). Legal title to the account will rest in their legal or natural guardian as custodian of the IRA that is held for their benefit. The amount that may be contributed to the custodial IRA is limited by the lesser of the usual annual contribution limits for IRAs (i.e., Five Thousand Five Hundred Dollars ($5,500) in 2015), or the total amount of the minor’s earned income in that year. Also keep in mind that most financial institutions have a minimum account balance requirement. Often this could be One Thousand Five-Hundred Dollars ($1,500) or more, which may be less than what the minor earned during their summer job. There are however financial institutions that only require a One Hundred Dollar minimum balance ($100).
For example, let’s say a grandchild earned Two Thousand Dollars ($2,000) this summer. The grandchild has several options, such as: (1) keep the Two Thousand Dollars ($2,000) and do with it what they will, (2) contribute all or a portion of it to their custodial IRA, (3) keep all of it, while a parent or grandparent makes a gift to the minor that may be used as a contribution to their custodial IRA, or (4) a combination of the second and third options.
To illustrate these options, we will describe the second, third, and fourth scenarios. The second scenario will not be very appealing to the minor. That is natural, as they just worked very hard for their income (perhaps for the first time in their life) and the thought of saving the money for retirement is a foreign concept to them. Most minors will need some encouragement to get excited about retirement savings. The third scenario is the “have your cake and eat it too” option. There is nothing wrong with that in this context. The parent or grandparent may just wish to help start their retirement savings process and hope that it will engage the minor and turn on a light bulb for them. However, the fourth scenario is the most likely to cause the minor to become actively engaged in the discussion about saving and investing for their future, since they have skin in the game now. Their grandparent could talk with them and explain that if they agree to set aside One Thousand Dollars ($1,000) of their own money for their future by creating an IRA, then the grandparent will also give the grandchild One Thousand Dollars ($1,000) for that purpose. The grandchild has One Thousand Dollars ($1,000) of spending money and Two Thousand Dollars ($2,000) for their retirement.
The next big decision is whether to create a Traditional IRA or Roth IRA. If the minor is being claimed as a dependent on an adult’s income tax return, then you should first check with the CPA preparing that adult’s income tax return. It is likely that the minor would not be able to claim an income tax deduction for contributions to a Traditional IRA. Therefore, a Roth IRA is usually the preferred choice. Moreover, once the minor begins taking their Required Minimum Distributions (in the distant future), the withdrawals will be income tax free and will have had forty (40) or more years to grow tax free. For instance, assuming an average rate of return of six percent (6%), that Two Thousand Dollar ($2,000) contribution would become Twenty Thousand Five Hundred Seventy One Dollars ($20,571) forty (40) years later. If the minor continues to make annual contributions to their IRA, this growth only compounds over time.
It is also important to remember to fill out the beneficiary designation for the custodial IRA. Think through who is the likely choice as primary and contingent beneficiaries for the minor. If you feel the minor is mature enough to take part in this discussion, then ask them their opinion and desires on the matter. After all, the minor will eventually become owner of the IRA once the custodianship ends.
Assuming that the parent or grandparent does make a gift to the minor, then what are the tax consequences to the donor? Because the donor would be making a cash gift to the natural or legal guardian of the minor, for that minor’s benefit, it will qualify for the Gift Tax Annual Exclusion since it is a present interest. That means that the donor may give up to the maximum contribution for the custodial IRA ($5,500) (assuming that the minor earned at least that much income) and because that amount is less than the Gift Tax Annual Exclusion amount i.e. Fourteen Thousand Dollars ($14,000) in 2015, it will be excluded from being a taxable gift, will not reduce the donor’s Estate or Gift Tax Exemption Amount, and no Gift Tax Return (Form 709) will be required to be filed (assuming the donor made no other taxable gifts).
If you would like to discuss this, or any other gifting strategy for the benefit of minors, please feel free to contact us and we will be happy to go over your options with you.
In In re: Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) the Florida Supreme Court set forth a non-exhaustive list of factors courts should consider when determining whether an individual actively procured a change to a will or trust. Those factors are: (1) the presence of the beneficiary at the execution of a will or on the occasions when the testator expressed a desire to make a will; (2) recommendation by the beneficiary of an attorney to draw the will; (3) knowledge of the contents of the will by the beneficiary before the execution; (4) the beneficiary instructing the attorney drawing the will; (5) the beneficiary securing the witnesses to the will; and (6) the beneficiary has the will for safekeeping after the execution. In re Estate of Carpenter, 253 So. 2d. at 702. While the court stressed that the circumstances of each case will be different and that not all the factors need to be present in order to establish active procurement, they are generally applicable when there is a challenge to a will or trust based on undue influence.
Different challenges arise when the alleged undue influence involves gifts or transfers of money during an elderly individual’s life. In those circumstances, Florida courts look to a defendant’s attempts to obtain the gift in question by “special effort.” See Davis v. Foulkrod, 642 So. 2d 1129 (Fla. 4th DCA 1994). In Davis, the court found that an individual’s suggestion of potential banks, transportation of the elderly adult to the bank and her presence when the joint account in question was opened were insufficient to establish active procurement. Additionally, courts have looked at other factors to determine whether undue influence exists, including the mental acuity of the donor at the time of the gift. See Cripe v. Atlantic Bank, 422 So.2d 820 (Fla. 1982). As a result, litigants should be aware of the different types of proof necessary to show active procurement.
Often, the circumstances underlying a change in a testamentary gift begin with an elderly parent turning to an adult child for help in their daily activities. Whether it is driving to and from doctor’s appointments or moving into an adult child’s house, such relationships, at first glance, would appear to meet the definition of a confidential relationship in every instance.
Recently, however, one Florida court found that this type of relationship, between an elderly parent and adult child, was not enough to support the presumption of undue influence. See Estate of Kester v. Rocco, 117 So. 3d 1196 (Fla. 1st DCA 2013). In Kester, the daughter accused of undue influence assisted her mother with various tasks and provided transportation whenever her mother needed it. The Court found those activities were insufficient to prove a confidential relationship, stating that “[e]vidence merely that a parent and an adult child had a close relationship and that the younger person often assisted the parent with tasks is not enough to show undue influence. Where communications and assistance are consistent with a ‘dutiful’ adult child towards an aging parent, there is no presumption of undue influence.” Estate of Kester 117 So. 3d at 1200. As a result, an adult child accused of unduly influencing an elderly parent should carefully examine the boundaries of their relationship before conceding the existence of a confidential relationship and the other prerequisites to finding that there is a presumption of undue influence. The Kester case may signal a new trend that treats siblings who are caring for an elderly parent differently in the context of undue influence allegations.