Articles Posted in Firm News

JCatalanoSRHL2-200x300Partner John Catalano, who joined the law firm earlier this summer, authored an article that appeared in today’s Miami Herald as a “My View” guest column in the newspaper’s “Business Monday” special section.  The article, which was titled “New Florida Law Helps Businesses Protect Against Frivolous ADA Lawsuits,” focuses on important legislative changes aimed at enabling Florida businesses to diminish their potential exposure to ADA barrier-to-access lawsuits.  John’s article reads:

Despite its net positive effect on the lives of millions of Floridians and visitors to the state, an unintended consequence [of the Americans with Disabilities Act] has been the proliferation of frivolous lawsuits aimed primarily at racking up attorney and expert-witness fees against Florida businesses and property owners.

These lawsuits are sometimes filed by lawyers who recruit clients to blanket entire city blocks of businesses with demand letters posing an ultimatum to either pay a quick settlement or face the threat of an ADA lawsuit. MHerald2015-300x72There are even allegations that some lawyers are using Google Earth to view sites without ever having a client actually visit them.

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Steve-Siegfried-2013-srhl-lawSteven M. Siegfried, our firm’s founder who launched the practice 40 years ago in 1977, was the subject of a “Profiles in Law” article published by the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which appears in today’s edition of the newspaper, chronicles his career and highlights his achievements as a construction law specialist, professor and writer for the last four decades.

The profile article, written by DBR reporter Samantha Joseph, reads:

Steven M. Siegfried wrote the book on construction law. The literal book. The one the American Bar Association published in 1987 as an early nod to a then-fledgling practice area.

His work, “Introduction to Construction Law,” became a standard reference for real estate and construction lawyers across Florida for the past three decades. Over several incarnations, it helped establish the Siegfried Rivera Hyman Lerner De La Torre Mars & Sobel partner as a foremost authority on a specialty he’s long championed.

The article notes that Steve’s other publications focus on construction lien law, construction defects, condominium warranty claims and the statute of limitations, culminating with his authoring of “Florida Construction Law” by Aspen Publishers in 2001.

dbr-logo-1-300x57It states that his concentration on construction and community association law began in 1976, when he foresaw that the real estate sector would become a pillar of the region’s economy that would require highly specialized practitioners.  The article notes that his firm “will celebrate its 40th anniversary this year. It employs 46 attorneys concentrating on real estate, construction, community associations, and property insurance . . . from offices in Miami-Dade, Broward and Palm Beach counties.”

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This year our firm is celebrating the 40th anniversary of its founding.  In 1977, Steven M. Siegfried had the vision to bring great lawyers and supporting staff together to focus on every aspect of Florida’s burgeoning construction, community association and real estate industries.

As Florida has grown, so too has SRHL.  Maintaining our focus, we are now 46 attorneys in our three South Florida offices.  As required by the evolution of the industries in which our clients excel, we have incorporated expertise in insurance, creditors’ rights, and the commercial transactions and disputes that relate to these core competencies.  We also have developed an expertise in aircraft transactional work.

As we reflect on our 40 years of service in these vital industries, we take pride in having played significant roles in some of the most important and challenging projects throughout South Florida and the nation.  We look forward to furthering our role as one of the most trusted sources for legal counsel and representation in these fields in the years to come.

bmclarkFirm partner B. Michael Clark, Jr. authored a guest column that appeared as a “Board of Contributors” feature in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which was titled “Court Upholds Concurrent Cause Doctrine in Win for Property Policyholders,” focused on the positive ramifications for Florida commercial and residential insurance policyholders of the state Supreme Court’s recent decision in the case of Sebo v. American Home Assurance.  Michael’s article reads:

The recent Supreme Court of Florida decision in Sebo v. American Home Assurance rejecting the “efficient proximate cause doctrine” in favor of the “concurrent cause doctrine” for property insurance claims represents a significant win for residential and commercial policyholders.

The state’s highest court has determined that the appropriate theory of recovery for claims in which two or more perils contribute to a loss but at least one of the perils is excluded from coverage is the concurrent cause doctrine. Under the rejected efficient proximate cause theory, when multiple perils cause a loss, it is the efficient cause — the one that sets the other in motion — to which the loss is attributed.

For the insurance industry, the efficient proximate cause doctrine has always been preferred. If the carriers are able to demonstrate that the efficient cause behind a loss is excluded from coverage under the policy, then the entire claim may be denied.

dbr-logo-thumb-400x76-51605-300x57Sebo makes the concurrent cause doctrine the legal standard to be applied for property insurance claims in Florida. Now insurers must cover a loss even if the covered peril is the secondary cause of the loss, which was concurrent with but not the primary or efficient cause.

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sodessbmclarkThe firm’s B. Michael Clark, Jr. and Susan C. Odess wrote an article that appeared as the “My View” guest column in today’s Business Monday section of the Miami Herald.  The article, which was titled “Insurers Make Mockery of Work Product Privilege Laws,” focused on the abuse by insurance companies of the state’s untenable work product privilege laws shielding their entire “claim file” from discovery in litigation.  The article reads:

A series of misinterpreted and sometimes contradictory court rulings during the last decade have created a situation in which the state courts and federal courts in Florida disagree on whether insurance carriers’ claim files are subject to discovery by plaintiffs in first-party property litigation. As a result, insurers are now afforded greater work product protection than any others in Florida’s state courts by being allowed to shield important reports, estimates, communications and photographs that would be subject to discovery in the state’s federal courts as well as in many of the other courts in the country.

The work product doctrine, which is incorporated into both the Federal and Florida Rules of Civil Procedure, is intended to shield from discovery documents and communications that are created in anticipation of litigation. It has been extended by Florida’s state courts to include all insurance company reports, communications, correspondence and routine claims investigation documents simply because the companies deem these materials to be part of their claim file, regardless of the fact that these documents were not generated in anticipation of litigation but rather during the routine course of claim investigation.

This has created a de facto new “insurer claim file” privilege that exists solely to enable insurers to exempt relevant documents from discovery, and it has quickly become the most confusing and arbitrarily enforced privilege in the state’s legal system. Insurers routinely invoke this privilege to avoid divulging everything except for copies of the actual policy and any written communications they had previously sent to the policyholder.

miamiheraldlogojpegIt seems preposterous to identify all pre-loss reports, photographs and emails starting from the moment when an insurer first issued a policy to have been generated in preparation for litigation. Yet somehow the state courts in Florida have (mis)interpreted several rulings and created an all-encompassing work product immunity for everything that insurers deem to be a part of their sacred claim file, regardless of whether litigation was actually being contemplated.

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Oscar R. Rivera

Oscar R. Rivera

The Daily Business Review, South Florida’s only business daily and official court newspaper, chronicles in its weekly “Dealmakers” column the work of South Florida professionals in putting together and finalizing many of the area’s largest real estate transactions.  The firm’s Oscar R. Rivera and David B. Halberstein were the featured Dealmakers in this week’s column, which appeared in today’s edition of the newspaper.  The article, which is titled “Attorneys for Buyer Closed $74M Office Deal with Bonus Acre to Develop,” focused on their work in representing the buyer of the Doral Costa office park in a $73.75 million acquisition.  It reads:

David B. Halberstein

David B. Halberstein

The reasons an affiliate of Triarch Investment Group wanted to acquire the 17.8-acre Doral Costa Office Park are clear.

The three Class A office buildings are 96 percent leased in a strong submarket. Tenants include Allstate Corp., HSBC Bank and Samsung. The property has nearly an acre of developable land.

“The Doral area is a very attractive area. Developable land in the heart of an office complex was very attractive to this buyer group,” said Oscar Rivera, a shareholder with Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, who along with associate David Halberstein represented buyer Doral Costa Capital LLC.

“These buildings are anchored by a significant and well-established group of tenants,” Rivera added. “It was a very solid investment for the buyer group.”

But completing the $73.75 million transaction with the seller, an affiliate of Boston-based TA Associates Realty, required fast work.

dbr logo-thumb-240x45-55816“It was essentially two months from contract to closing with less than 30 days for due diligence,” Halberstein said.

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I am proud to be participating in the International Council of Shopping Centers (ICSC) RECon event, which will be taking place at the Las Vegas Convention Center & Westgate Hotel May 22-25, 2016.  This four-day educational program is the largest retail real estate exhibition and conference in the world, with more than 36,000 industry executives, retailers, financial companies, and product and service suppliers in attendance each year.

On Tuesday, May 24, I will be presenting the session titled “The Economics of a Lease: Developers and Retailers Perspectives,” which will cover the strategies and tactics of negotiating monetary provisions, including minimum and percentage rent clauses, security deposits, operating costs, real estate taxes and T/I payments.  icsclogo2015Participants will be led through an analysis of key elements of each of the lease provisions.  The session is scheduled to take place from 9 to 10:30 a.m.  Click here for additional program details.

Founded in 1957, ICSC is the global trade association of the shopping center industry with more than 60,000 members in the U.S., Canada and over 90 other countries.

 

The firm’s David Halberstein was quoted this week in reports by the Daily Business Review, South Florida Business Journal and The Real Deal about his work together with partner Oscar Rivera in representing Doral Costa Capital LLC (an affiliate of Aventura-based Triarch Investment Group Inc.) in its acquisition of three Doral office buildings for $73.75 million (approximately $259 per sq. ft.)

The buildings in the 17.8-acre Doral Costa office park house such major national tenants as Allstate Corp., HSBC Bank and Samsung, and they are approximately 96 percent leased.  They comprise a three-floor, 132,704-square-foot building at 9800 NW 41st St.; a four-story, 133,117-square-foot property at 9850 NW 41st St.; and a three-floor, 19,739-square-foot building at 4090 NW 97th Ave.  Two of the buildings were completed in 2001 and the third in 2006.  The site also includes about 0.8 of an acre of vacant land.

In a statement about the acquisition to a reporter, David wrote:

DavidHalberstein1-200x300“There was not a lot of time for due diligence with this transaction. It was essentially two months from contract to closing, less than a month of which was set aside for due diligence, and because we were financing a portion of this transaction there were a great deal of requirements that needed to be satisfied within the short time frame.

Adding to the challenges was the fact that some of the tenants have build-outs of their spaces currently in progress, so there were notices of commencement and other issues that needed to be dealt with prior to the closing. Fortunately, Oscar Rivera and I had the luxury of working with a brilliant group of people on this deal, so we were all able to pull together to clear all of the hurdles and cross the finish line.

We were dealing with a very tight window of time, which is becoming increasingly common these days for large commercial real estate transactions, especially in South Florida, so the deal is emblematic of the importance of a thorough yet expedited due diligence process.”

Our firm congratulates David on being featured in the media coverage of this major real estate acquisition.  Click here to read these reports in the Daily Business Review (registration required), South Florida Business Journal and The Real Deal.

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I am proud to be participating in the International Council of Shopping Centers (ICSC) University of Shopping Centers event, which will be taking place on the campus of the Wharton School at the University of Pennsylvania on March 7-9, 2016.  This three-day educational program will enable attendees to gain a higher level of knowledge of the retail real estate industry by learning directly from experienced professionals.

On Tuesday, March 8, I will lead the course titled “Economics of a Lease: Developers and Retailers Perspectives,” which will cover the strategies and tactics of negotiating monetary provisions, including minimum and percentage rent clauses, security deposits, operating costs, real estate taxes and merchants/marketing fund payments. The course is scheduled to take place from 2 to 5 p.m. Please click here for additional program details.icsclogo2015

Founded in 1957, ICSC is the global trade association of the shopping center industry with more than 60,000 members in the U.S., Canada and over 90 other countries.

orivera1The firm’s Oscar R. Rivera was quoted extensively in an article that appeared in today’s edition of the Daily Business Review, South Florida’s only business daily and official court newspaper.  The article, which was titled “Judge Urges Fairness in Foreclosure Actions,” focused on the concurring opinion written by Judge Chris Altenbernd of the Second District Court of Appeal in the court’s ruling filed on Jan. 13 in the case of Bonafide Properties v. Wells Fargo.  The article reads:

In Bonafide Properties v. Wells Fargo, the Second District affirmed a trial court decision to bar the investor/buyer of a foreclosed property from a bank foreclosure action. The court’s reasoning was that since Wells Fargo initiated its foreclosure first, the bank wins.

Altenbernd took the opportunity to philosophize about the process, which involves parallel foreclosure proceedings, that dates to the 2008 real estate meltdown. He encouraged trial judges to monitor the impacts on foreclosed homeowners and renters caused by this common form of investor purchasing.

He also called upon the Florida Bar, the Florida Supreme Court and the Legislature to do some fine-tuning.

“It seems likely that there is a measure of good within this innovative procedure that should be preserved,” the judge wrote. “It also seems likely that there is a measure of bad that ought to be regulated or prohibited by substantive law or rules of procedure.”

Knowledgeable observer Oscar Rivera said Altenbernd’s concurrence “shows the concern of courts about being fair to people who are being foreclosed and aggrieved by this situation.”

“He wants to make sure that in the context of the benefits, the homeowners and tenants are not being unduly harmed,” said Fort Lauderdale-based Rivera, who heads the real estate/corporate practice group of Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel. “That’s commendable.”

Certainly there are benefits enough to entice the big stakeholders — home owner associations, lenders and the investor/buyers such as limited liability companies and HOAs.

The procedure goes like this: Florida is notoriously slow about completing bank foreclosures. In the meantime, HOAs looking for their unpaid fees file second foreclosure proceedings in county courts. Then either the homeowner defaults or the case quickly moves to trial.

The HOA gets a judgment. At the county court foreclosure sale the bidding is low because everybody knows the property typically is worth less than the mortgage that will eventually have to be paid off.

Often the buyer is an LLC that specializes in such purchases. The buyer pays the back HOA fees, the property taxes and insurance and rents to a new tenant at fair market value. Month by month profits accumulate because rents are relatively high and the property was obtained for peanuts.

“It is a benefit to the community as a whole if there are people who take over the units and pay their share while these long-winded foreclosures go through the system,” Rivera said. The property is stabilized and the bank can sit back and put off its foreclosure end game until the market rebounds.

The article concludes:

Rivera said in his experience trial judges already take pains to help homeowners. “Judges try and give the benefit of the doubt to the debtor, and the trial courts are reasonably compassionate with borrowers who truly have a desire to keep the property,” Rivera said.

He said he doesn’t expect the Florida Supreme Court to jump on Altenbernd’s suggestion that the justices tweak the procedure. “It’s a public interest issue and it would be more appropriate for the legislative side than the judicial side.”

Nor does he expect the Legislature to act, especially since many local governments have proactively addressed Altenbernd’s concerns. “Some say government already regulates way too many things, and we don’t need any more government regulation,” Rivera said.

Whether there’s more regulation or deregulation, the state’s foreclosure jackpot is nowhere near over. Sixty cases like Bonafide v. Wells Fargo are pending in the Second District alone, according to Altenbernd’s concurrence.

A year ago 300,000 open foreclosure cases were clogging Florida state courts, Coral Gables foreclosure defense lawyer Dillon Graham told HousingWire Magazine. Queueing up: about 550,000 homeowners who were behind in their mortgage payments by 90 days or more.

And with investors nudging housing prices skyward, chances are that more average buyers will get in over their heads, perpetuating the bubble-and-bust syndrome.

Still Rivera is optimistic about real estate after what he calls “the tail end of the foreclosure crisis.”

“We’re reaching the end of the cycle,” he said, “and hopefully there won’t be another one anytime soon.”

Our firm congratulates Oscar for sharing his insights on this opinion with the readers of the Daily Business ReviewClick here to read the complete article in the newspaper’s website (registration required).

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