Florida Property Appraiser

MOVING? THE CAP ON YOUR HOMESTEAD IS PORTABLE

by Grant W. Kehres* | Posted 09/15/2014

Property taxes in the State of Florida are calculated on the assessed value of one’s home. In the early 1990’s, during a prosperous housing market, homeowners were faced with a problem. If a homeowner purchased a home for $300,000, he or she would expect to pay property taxes on that amount. If the home suddenly appreciated in value to $400,000, the homeowner may not have been able to pay the proportionate increase in taxes. As a result, many people actually had to sell their homes because the market was performing too well.

In response to this problem, Florida voters passed “Save Our Homes,” an Amendment to the Florida Constitution. Under Save Our Homes, and as codified in the Florida Statutes [1], the increase in assessed value of a homestead property is capped at the lesser of either: 1) 3% from the previous year, or 2) the percentage change of the Consumer Price Index [2].

While this Amendment remedied one problem, it created another. Homeowners became protected by a capped assessment, which enabled them to remain in their homes while their values were escalating. However, this Amendment made homeowners reluctant to move to a new residence because of the cost associated with giving up their tax savings that the cap provided.

In 2008, the Florida Constitution was once again amended to allow for the portability of all of a homeowner’s accumulated savings, via the cap on increases in assessment value of homestead property [3]. A homeowner is entitled to “port” their assessment tax benefits to a new purchased home as long as the new homestead is established within two (2) years of abandoning the previous homestead.  Using the above example, assume that your $300,000 house is assessed at only $200,000, due to the Save Our Homes cap on assessments. Before the 2008 Amendments, a homeowner would be hesitant to move and give up those tax benefits afforded. Under the 2008 Amendment, the homeowner may now purchase a new property and the $100,000 differential (between the $300,000 value of the house and the $200,000 assessed value) is transferred to the new property. In other words, if the homeowner purchases a new house for $600,000, the homeowner can transfer the $100,000 differential to create an assessment value of $500,000 on the new property. This, of course, is provided that the homeowner establishes the new homestead within the two year allowable period.

Where it gets tricky, however, is when a homeowner moves into a less expensive new property. If a homeowner is moving from the $300,000 home (which is assessed at $200,000 under the 1995 Amendment) and into a $150,000 home, the homeowner is not afforded a $100,000 differential. Instead, the homeowner is afforded the same ratio of its previous difference in assessment. In this example, the first home is assessed at two-thirds of its value ($200,000 on a $300,000 house), so the new home will be assessed at two-thirds of its value, or $100,000 on the new $150,000 home.

Our office possesses extensive experience in assisting clients with homestead issues and routinely assists clients in establishing first homestead properties and with advice on portability in regard to new homestead properties. For of your homestead needs, we invite you to tap into our 34 years of Florida real estate law knowledge and experience.

 ________________________

[1] Section 193.155 of the Florida Statutes, Homestead Assessments, as amended from time to time.

[2] Section 193.155 (1) (b) of the Florida Statutes defines “Consumer Price Index” as the percentage change in the Consumer Price Index for All Urban Consumers, U.S. City Average, all items 1967=100, or successor reports for the preceding calendar year as initially reported by the United States Department of Labor, Bureau of Labor Statistics.

[3] Those specific rules regarding portability are set forth in Florida Statute 193.155(8)

________________________

*Grant Kehres is Board Certified by the Florida Bar Board of Legal Specialization as a Real Estate Law Specialist.  He holds a doctorate in jurisprudence from Vanderbilt University, an MBA (finance) from Babson College and a dual undergraduate degree in Investments and Economics from Babson College.  Admitted to The Florida Bar in 1978, he has handled more than 10,000 closings for more than 8,000 clients.  For more information on our services and what distinguishes our office from other law firms and title companies, call (561) 392-5200 or e-mail us at info@bocaclosings.com.

 


Home | Recent Closings | Real Estate Myths | Grant’s Commentaries | Qualifications | Contact


 

MAINTAINING ACCURATE CORPORATE MINUTES CREATES PROTECTION UNDER THE BUSINESS JUDGMENT RULE

by Grant W. Kehres* | Posted 09/02/2014

Over the past decade, Florida Courts have transitioned into adopting the Business Judgment Rule. The Business Judgment Rule creates a layer of protection for corporate directors and protects a director or board member against personal liability lawsuits in the event that a director(s) makes a decision which leads to a lawsuit.

The Business Judgment Rule[1], as applied by several Florida Courts[2], provides that a corporate director is protected against personal liability lawsuits resulting from the director’s decision, as long as the decision of the director is made within the scope of his or her authority and that decision is reasonable. The question, then, is what makes a decision reasonable, and thus a protected decision under the Business Judgment Rule.

In Tiffany Plaza Condo. Ass’n v. Spencer, a Condominium Association sought to assess fees to all condominium unit owners for their prorated cost of constructing a rock revetment in a beachfront area defined as a common element of the condominium. At an annual meeting of the Condominium Association, the Association voted on whether to assess these fees to the owners, a measure which passed. This annual meeting included the preparation of corporate minutes, documenting the vote approving the measure.

A unit-owner sued to prevent collection of fees by the Association, arguing that the revetment was not an “alteration or improvement of a common element,” the only type of assessments to common elements that were permitted under the Declaration of Condominium, the rules governing the Condominium Association’s actions.

The Court, in reaching its decision, applied the Business Judgment Rule and determined that the Association is protected against the owner’s lawsuit, without deciding whether the rock revetment was an alteration or improvement. The Court explicitly stated that it did not matter whether the construction of the rock revetment was actually an improvement or necessary to protect the beachfront from erosion or damages, but whether the Condominium Association’s determination was reasonable.

Ultimately, the Condominium Association was awarded a complete defense under the Business Judgment Rule due in large part to the corporate minutes[3], which documented the Condominium Association’s decision process and its official vote on the matter. Preparation of corporate minutes are incredibly important and necessary, and in the event that a director or board members of a Corporation are sued, the corporate minutes can be used to show that the decision process and to illustrate that sound judgment took place. By keeping corporate minutes up to date and accurate, corporate directors and board members are often protected from personal liability lawsuits.

Our office routinely assists corporate clients with compliance, corporate formation and other business law issues.

________________________

[1] Florida case law provides four elements which must be present for the business judgment rule to act as a shield to director liability:  (a) the decision under review must be a business decision; (b)  the director must not receive a personal benefit from the transaction ; (c) the director must exercise due care; and (d) the director must exercise good faith.  F.D.I.C. v. Stahl, 854 F. Supp. 1565, 1570-1571 (S.D. Fla. 1994).

[2] Hollywood Towers Condominium Ass’n v. Hampton, 40 So. 3d 784, 787 (Fla. 4th Dist. Ct. App.  2010);

Farrington v. Casa Solana Condo. Ass’n, 517 So. 2d 70, 72 (Fla. 3d Dist. Ct. App. 1987);

Tiffany Plaza Condo. Ass’n v. Spencer, 416 So. 2d 823, 826 (Fla. 2d Dist. Ct. App. 1982.

[3] Section 607.0701 of the Florida Statutes requires that all corporations conduct an annual shareholder meeting. The time and place for an annual shareholder meeting is mandated in a corporation’s bylaws, adopted by the corporation when it was formed.

Section 607.1601 of the Florida Statutes requires that minutes of all corporate meetings be prepared and kept as part of the corporation’s permanent records. Subsection (4)(d) specifically mandates that minutes of all shareholders’ meetings be kept by the corporation for the prior three years.

 


*Grant Kehres is Board Certified by the Florida Bar Board of Legal Specialization as a Real Estate Law Specialist.  He holds a doctorate in jurisprudence from Vanderbilt University, an MBA (finance) from Babson College and a dual undergraduate degree in Investments and Economics from Babson College.  Admitted to The Florida Bar in 1978, he has handled more than 10,000 closings for more than 8,000 clients.  For more information on our services and what distinguishes our office from other law firms and title companies, call (561) 392-5200 or e-mail us at info@bocaclosings.com.

 


Home | Recent Closings | Real Estate Myths | Grant’s Commentaries | Qualifications | Contact


 

BROKER BEWARE! PERSONAL PROPERTY, REAL ESTATE CONTRACTS AND SALES TAX

Is sales tax due when personal property is separately broken out on a real estate contract?

by Grant W. Kehres* | Posted 03/25/2014

From time to time we see some real estate purchasers, and an occasional real estate seller, manipulate the real estate contract and artificially allocate a portion of the sales/purchase price to furniture or other personal property.  In the shadows of this contract manipulation lurks the government and criminal liability for the seller, purchaser and real estate broker.

The purchasers believe the county real estate property appraiser will rely on the lowered  real estate price allocation and award the purchaser a lower valuation for county ad valorem taxes.   The occasional real estate seller that does so is usually either a foreign seller on the cusp of a $300,000.00 sales price trying to qualify for the “$300,000.00 and under FIRPTA exemption”[1] or trying to fool the Florida Department of Revenue into accepting lower-than-otherwise documentary stamps on the transaction.[2]

Florida Real EstateAs a practical matter, the actions of the purchasers and sellers in these situations are either unsuccessful, criminal, or both; and in some cases sales tax is due on the amount allocated to the furniture or other personal property.  If the real estate broker fails to collect and remit the sales tax, the real estate broker faces fines and imprisonment!

Say what you will about Florida’s county property appraisers, they are anything but naive or without resources to determine the true value of real estate.  The amount of the documentary stamps attached to the deed is only one of many factors the property appraiser uses in reaching the annual valuation for tax purposes.[3]   The manipulation may have a small effect on the valuation the first year after the sale.  But in future years, the property’s “purchase price” becomes less relevant in determining the annual valuation.  In short, the purchaser gets away with very little, while becoming exposed to the risk of criminal prosecution (along with the seller) for conspiracy to defraud the county government of county tax revenue and the state government of state documentary tax revenue, not to mention the Internal Revenue Service when Federal tax issues are involved.

Sadly, most buyers don’t realize they can get the same temporary favorable property valuation treatment without manipulating the purchase price because the county property appraisers send to purchasers, shortly after the purchase closes, a questionnaire asking if any extraordinary personal property was involved in the transaction.  A “yes” and the buyer’s estimate of value must be taken into consideration by the property appraiser.  In those situations where the property appraiser fails to ask, the taxpayer has the right to bring the fact to the attention of the property appraiser, and the property appraiser must take the value of personal property into consideration.[4]

The foreign FIRPTA manipulator is similarly foolish.  The exemption from withholding under FIRPTA is not an exemption as to the payment of any tax due the United States, nor is it an exemption from the obligation to file a tax return with the Internal Revenue Service.  Granted, shortly after the closing the foreign seller might be safe from the long arms of the IRS behind the borders of their home nation; but what about the US purchaser that conspired with the foreigner?  It is the buyer that has the obligation to withhold under FIRPTA, and the IRS knows where you are.

In summary, there’s more gristle than gravy for Sellers and Buyers to artificially adjust the sales price of real estate by allocating part of the transaction’s price to personal property. But how about the real estate broker?  Should the broker care?

Turns out, the real estate broker is liable for collecting sales tax on the value of the personal property separately allocated on the real estate contract or bill of sale!  This rule is equally applicable to the legitimately and illegitimately allocated personal property sales price allocation.

Florida law provides that a tax is levied on every person that engages in the business of selling tangible personal proprety at retail[5], and the tax is 6% of the sales price of each item[6].

Business” is statutorily defined as any activity engaged in by any person with the object of gain[7].   Excluded from the definition of “business” is the occasional or isolated sale or transaction involving tangible personal property who does not hold himself or herself out as engaged in business, the so called “yard sale” or “casual sale” exemption.

The Florida Administrative Code specifically provides that the isolated sales exemption does not apply to the sale of tangible personal property by or though an auctioneer, agent, broker or any other person required to be registered as a dealer to collect and remit tax on such sales[8].  The term “dealer” is broadly defined[9] and includes real estate brokers.

Bottom line: When personal property is separately broken out on a real estate contract on a transaction wherein a real estate broker is involved[10], the real estate broker is required to collect and remit sales tax on the amount allocated to the personal property.  The failure to collect and remit sales tax carries with it interest, civil penalties and criminal liability.  Florida law states that, depending upon the amount involved, any person who, with intent to unlawfully deprive or defraud the state of its moneys can be convicted of various criminal  offenses  ranging from a misdemeanor to a felony in the first degree[11].  First degree felony convictions carry imprisonment of up to 30 years[12], and a fine of up to $10,000.00[13] or twice the amount of the tax, whichever is greater[14]. Obviously, the State is serious about sales tax on the sale or furniture and other personal property.  Maybe you should be, too!

 

________________________

[1]FIRPTA is the Foreign Investment in Real Property Tax Act of 1980, 26 USC Section 1445, which generally requires a purchaser to withhold from a foreign seller of a US real property interest, 10% of the purchase price, and remit those funds to the US Treasury as security for the payment by the foreign person of any tax due as a consequence of the sale.  The government determined, as a matter of tax administration policy, that cost of administering small non-commercial transactions was not worth the tax benefit and exempted purchasers from compliance provided the transaction was $300,000.00 or less and the purchaser has definite plans to use the property for its own use more than half the time the property is intended to be used over the next two (2) years.

[2]Florida Statutes Section 201.02(1)(a) (2013) imposes a tax on deeds at the rate of 70 cents per $100.00 or fraction thereof of the consideration paid or agreed to be paid.

[3]For an excellent discussion of the factors considered by Florida county property appraisers in valuing real estate for the ad valorem tax, see The Florida Real Property Appraisal Guidelines, a 58 page pamphlet published November 26, 2002 by the Florida Department of Revenue under its Tax Administration Program.

[4]See Article VII, Section 4, Florida Constitution.  See also Bystron v. Witman, 488 So2d 520 (Fla. 1986).

[5]F.S. 212.05(1)(a) (2013)

[6]F.S. 212.05(1)(a)1.a. (2013)

[7]F.S. 212.02(2) (2013)

[8]Rule 12A-1.037(2)(a)5, F.A.C. and Rule 12A-1.037(5), F.A.C.

[9]F.S. 212.06 (2) (2013)

[10]The definition of a “dealer” under F.S. 212.06(2) (2013) is so broad that it could be easily argued the Seller who happens to be a real estate broker is not entitled to the casual sale exemption, even when there is no other real estate broker involved in the transaction.

[11]F.S. 212.15 (2013)

[12]F.S. 775.082(3)(b) (2013)

[13]F.S. 775.083(1)(b) (2013)

[14]F.S. 775.083(1)(f) (2013)

 


*Grant Kehres is Board Certified by the Florida Bar Board of Legal Specialization as a Real Estate Law Specialist.  He holds a doctorate in jurisprudence from Vanderbilt University, an MBA (finance) from Babson College and a dual undergraduate degree in Investments and Economics from Babson College.  Admitted to The Florida Bar in 1978, he has handled more than 10,000 closings for more than 8,000 clients.  For more information on our services and what distinguishes our office from other law firms and title companies, call (561) 392-5200 or e-mail us at info@bocaclosings.com.

 


Home | Recent Closings | Real Estate Myths | Grant’s Commentaries | Qualifications | Contact