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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 was 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 his work in representing the buyer of the Doral Costa office park in a $73.75 million acquisition.  It reads:

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, who 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.

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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.

 

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. “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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OscarRivera2014.jpgThe firm’s Oscar R. Rivera wrote an article that appeared today in the Daily Business Review, South Florida’s exclusive business daily and official court newspaper. The article, which was titled “Best Practices for Buyouts of Unit Owners at Older Condos,” discusses recent changes in the Florida condominium termination law and important considerations for developers in these property acquisitions. Oscar’s article reads:

In the last several weeks we learned of a building in Surfside where the developer successfully bought out all of the units from their owners and another in the Brickell area where the developer purchased 60 of the 61 residences from their owners and is now using the statutory condo termination process to acquire the remaining unit and commence its development plans.

During last year’s legislative session, Florida lawmakers made changes to the condominium termination statute that made the process considerably fairer for unit owners. Now owners who are current on their mortgages and association fees must get fair market value, and their entire first-mortgage debt must be satisfied even if it exceeds the current fair market value.

In addition, for the original owners who maintain it as their homestead property, they must be offered their original purchase price regardless of whether it exceeds the current fair market value. The changes also enable some owners to rent their units for a year before moving out and receive a 1 percent relocation fee.

In light of these changes and in an effort to avoid any delays and additional costs due to holdout owners and related litigation, it greatly behooves developers in these buyouts to carefully assess and determine the valuation of the property in order to make very fair and enticing offers to the unit owners.

Keep in mind that the price that is offered to every owner will be based on the same exact price per square foot for every residence in the building, so the square-foot price must be high enough to entice even the owners of the most lavish units with the best views.

His article concludes:

The most effective approach is for the developer to work very closely with the association’s board of directors in order to get all of the pertinent information into the hands of every owner at the property. Meetings with the owners to answer all of their questions and allay any of their concerns are also a priority.

The contracts that are presented to all of the owners will be identical, except of course for their corresponding unit number, owner’s name and purchase price based on the square footage. There are no financing contingencies or property inspections required, but they do include contingency clauses indicating the required critical mass of units that must accept in order for the offers to be valid. They also include extension clauses to enable the developer to extend the deadline in case of litigation or other delays due to some of the logistics of the condo termination process.

In many cases, the only negotiations that take place with some of the individual owners involve their requests to remain in their residences and pay rent to the developer for a number of months after the closing. Developers should remain flexible in accommodating these requests, as typically they will not be able to begin the teardown of the property for months after the closings while other aspects of the condo termination and development processes are underway.

Our firm congratulates Oscar for sharing his insights into this important and timely topic for real estate developers with the readers of the Daily Business Review. Click here to read the complete article in the newspaper’s website (registration required).

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OscarRivera2014.jpgThe firm’s Oscar R. Rivera contributed a guest column that appeared in today’s edition of the Daily Business Review, South Florida’s only business daily and official court newspaper, about the recent decision by the First District Court of Appeal in the case of Thomas I. Bowman v. Jon Michael Barker et al. His article reads:

. . . Bowman purchased a home from Barker that was later discovered to have numerous defects. He filed a lawsuit alleging that Barker failed to disclose known defects in the house contrary to his duty under the law and fraudulently misrepresented the condition of the house. The suit also included other defendants and claimed that they contributed to the problems and caused damages related to their roles in repairing, remodeling, inspecting and selling the house.

The defendants denied being aware of any defects in the property at the time of the sale and moved for summary judgment, which was granted by the circuit court.

In reversing the lower court’s decision to issue a summary judgment for the defendants, the First District Court of Appeal found that the home buyer had demonstrated the existence of facts and inferences that should have allowed the case to go to trial.

These included evidence that the home sellers were experienced real estate investors in other house-flipping projects, and they had knowledge of the extremely poor initial condition of the house. In fact, they admitted that it was in such bad condition that they were able to buy it for little more than the value of the land.

The defendants also admitted to knowing about the need for substantial repairs that included structural damage and a failing foundation, which was later estimated at more than $50,000 to repair, and about the existence of prior additions and unpermitted work.

The appellate panel found that this evidence raised questions of fact about the home sellers’ knowledge and also undermined their credibility and the plausibility of their denying knowledge of the defects and the necessary repairs.

Oscar’s article concludes:

The home sellers testified that the repairs had been completed prior to closing, but the appellate court found that there was evidence indicating that the main defendant had admitted to making several false representations on the property disclosure form, which he said was due to pressure from his Realtor and his dislike for completing those forms. The opinion also found that there were conflicting accounts of what representations he made about whether the repairs had been completed.

The evidence also revealed that the remodeling contractor has a different view of the instructions given and the scope of work. The company’s representative claimed that he and his business partner were never made aware of any structural issues, nor were they asked to repair them.

The court also ruled that the fact that the house was sold as is did not make summary judgment appropriate as the duty to disclose known defects continues to exist for a home sold as is. The opinion found:

Despite selling this house as is, the sellers had a duty to disclose what they knew about its condition, and they undertook to make disclosures to appellant about the condition of the house. The record demonstrates triable issues of fact about what that condition was, what the sellers knew about it, what disclosures were made and whether those disclosures were accurate.

Our firm congratulates Oscar for sharing his thoughts on this ruling and its positive implications for home buyers in Florida with the readers of the Daily Business Review. Click here to read the complete article in the newspaper’s website (registration required).

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