When two people own property as tenants in common, each owns an undivided interest in the whole.  If one dies, then probate is required to deal with title to the property of the one who died.

When two people own property as joint tenants with full rights of survivorship, then each still owns an undivided interest in the whole, but when one dies his or her title automatically passes by operation of law to the surviving owner without probate. (There is controversy in Florida now whether creditors of the decedent can reach the joint property even though it does not pass through probate.)

When two people own property as tenants by the entirety, you know they are married because that form of ownership is reserved for married couples. The concept dates back to jolly old England hundreds of years ago when the property owned by husband and wife as tenants by the entirety was considered a “moiety” of title which could only be broken by voluntary act of both spouses. Thus, creditors of just one spouse could not reach tenancy by the entirety property. That rule still applies in Florida, which makes tenancy by the entirety a popular way for married couples here to hold title. In fact, Florida recognizes tenancy by the entirety in both real property like houses and in personal property like bank accounts and investments. And, of course, it avoids probate at each because tenancy by the entirety property passes automatically by operation of law to the surviving spouse.

Let’s apply the above concepts to a typical factual situation. A husband and wife in Florida own investment real estate as tenants by the entirety. One dies, and the property automatically becomes solely owned by the surviving spouse without probate.  Should he or she then add the children to the deed as joint owners with full rights of survivorship in order to avoid probate at her death?

Let’s suppose she did and then suppose that one of the children later has a nasty divorce proceeding and another child later has problems with credit card debt.  Can the children’s spouse and creditors reach the children’s interest in the joint property?  Yes, they can. This is a huge risk for anyone who adds someone else as a joint owner to their property for the purpose of avoiding probate.  While it might avoid probate at their death, it places the property at risk of being reached by the new joint owners’ present and future spouses and creditors.

Conclusion: It is simple to put property into joint names in Florida, but the effect is not so simple. Probate might be avoided, but at the risk of loss of the property before then to creditors of the new joint owners. There are other ways to deal with this problem. Ask your Florida lawyer.

I switched my law practice from PC to Mac in October 2009.  Alas, there is no Hot Docs for Mac. Then I switched my word processor from Microsoft Word to Apples Pages in February 2010. Alas alas, there is no Hot Docs for Pages. So, I have been hunting for software that searches and replaces multiple variables of text in an Apple Pages document in one pass.  And I found it…from Apple. It’s built in.  You just use Numbers to hold the client’s variable text, and you use Pages to generate the documents. Both Pages and Numbers are included in Apple iWork ’09.  Pages is Apple’s answer to Word, and Numbers is its answer to Excel.

Apple Pages mail merge can merge variable text from an Apple Numbers document into an Apple Pages document.  You usually think of mail merge as creating letters and envelopes. That’s how it works with Word, and that’s how it works with Pages, too. But Pages also lets you merge your own variables from a Numbers document into a Pages document.

The instructions for merging with your own variables, instead of just Address Book variables, are on page 236 of the Apple Pages ’09 User Guide. It’s really easy since it involves just two files, but I will walk you through the steps I go through to create legal form documents for merging with Apple Pages.  Here goes:

1. Find the legal form. Texas lawyer J. Harris Morgan taught lawyers years ago to throw copies of legal documents into whiskey boxes next to our desks. So, go to the whiskey box and pull out the form you want to “mergify”.  Let’s assume it’s a deed. Print it on page for convenience.
2. Mark through the variable text. Now, go through the deed and strike through all the variable text, like the grantor name, grantor address, grantee name, grantee address, property address, property legal description, county, etc.  Take your time. You don’t want Client A’s name to be on Client B’s deed.
3. Create the form document in Pages. Open Apple Pages and type that legal form document into it, or cut and paste it from an actual client file. This is your template.  Save it with a name like “Deed template 2010.03.27.pages”.  Note that I always put the date in the file name so that I know when I created it. Also note that you don’t need to save the file as a template.  Saving it as a .pages file works just fine.
4. Create the fill-in document in Numbers. Now open Apple Numbers and create a blank spreadsheet and save it with a name like “Deed fillin 2010.03.27”. This will hold the specifics for your client.  This is the variable text.
5. Enter the variable names in Numbers. In the first row type a variable name in each column.  For example, in row 1 column A type the variable name “grantor name”, and in column B type “grantor address”, etc.  Enter a column name for every variable text item in the deed (property address, property legal description, county, etc.)  Each name must be different.  Save this file for future use.  The second row will contain the client’s specific information in each column for those variables.
6. Enter the variables in the form document in Pages. Go back to your legal form document in Pages. Using your paper mark-up of the legal form as a guide, go to the first variable text item that you struck out and rename it with its variable name.  I add 3 asterisks around it for ease in viewing.  So, the first variable might be ***grantor name***. Then select that variable name and do the following in this order:
   1. In the form document in Pages, select the variable name including the asterisks so that it is highlighted;
   2. Click on the Inspector at the top of the Pages document’s bar;
   3. Click on the Merge button;
   4. Click the radio button for Numbers document;
   5. Navigate to your saved Numbers fill-in file and select it;
   6. Click the plus sign in the lower left of the Inspector window;
   7. Click Add Merge Field;
   8. Pages will insert your highlighted text into the window under the Merge Field column;
   9. The Target Name to the right is probably not the correct variable name that appears as a column in your Numbers file, so in the Inspector window click to the right of the Target Name that Pages inserted for your Merge Field and a drop down list will appear with all of the variable names you entered in the first row of your Numbers file; just select the correct Target Name for the variable text you are trying to insert in the form at that point (e.g., ***grantor name*** Merge Field should have “grantor name” as the Target Name if that is what you typed as the column heading).
   10. Do the above for every variable text entry in your legal form in Pages.
   11. Save your Pages document file for future use.
7. Enter client’s variable text in Numbers. The hard part is done. Open the Numbers fill in document.  Enter the client’s information in row 2 of each column. So, under the grantor name column you would enter “John T. Jones”.  Do this column by column. Save the Numbers file to your desktop or other location you can find.
8. Merge in Pages to create the client’s document.  Now go back to your form document in Pages and do the following:
   1. Click Edit;
   2. Click Mail Merge;
   3. Click Numbers Document and choose your fill-in Numbers document by clicking Choose and navigating to it if not already shown;
   4. Select Merge to New Document;
   5. Click Merge, and Pages creates a new Pages document by merging the client’s variable information into the Pages form.

So, this worked for me. I just discovered it today. So these instructions are still in beta, even if Pages and Numbers are not. Let me know if this works for you or if you have any tips or tricks of your own to make this work better. Thanks.

Jim Martin
St. Petersburg, Florida
March 27, 2010

The bill is intended to stop drivers from texting while driving. However, it defines texting rather broadly as “any digital communication manually created by a person to be transmitted electronically between physical devices”.  Oops. I think your dragnet picked up cell phones in that definition.

So even if you used a headset (which would be required if a different bill, HB 333, passes), you would not be allowed to use a cell phone at all.

Jim Martin 3/13/10

FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.

If adopted and signed into law, HB 35 would take effect on July 1, 2010. It would prohibit the lender obtaining a deficiency judgment when foreclosing on a Florida homestead.

This would mean that the lender could only recover from the sale of the homestead at the courthouse steps. The lender would not be able to get a personal judgment against the borrower for the shortage between the sale price and the loan amount.

The bill is silent with regard to whether a lender may elect to sue only on the promissory note and not sue on the mortgage.  If this was not prohibited, then a lender could get a personal judgment on the note by electing not to foreclose the mortgage.

The Legislative Session only began on 3/1/10. Who knows whether this bill will become law?

Jim Martin 3/13/10

FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.

If adopted, HB 279 would become effective 7/1/10 and would mandate use of the purge or physical destruction techniques set forth in  ”Guidelines for Media Sanitization: Recommendation of the National Institute of Standards and Technology,” NIST Special Publication 800-88.

It would apply to all “any information that is deemed secret, private, personal, or confidential in nature; contains identifying information, including names, personal or business addresses, social security numbers, credit or debit card numbers, bank account numbers, telephone numbers, or photographs that are recorded on media.”

Sounds like a good idea. Wonder what it will cost everyone.

Jim Martin 3/13/10

FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.

If adopted, HB 75 would become effective 7/1/10 and would allow a homestead owner to file a notice invoking the Foreclosure Bill of Rights. Within 45 days thereafter, the lender would have to obtain a new appraisal of the homestead.  Then the lender would have to provide the appraisal to the borrower along with copies of all the loan closing documents involving the mortgage.

So far so good in protecting the borrower. Here’s where the bill takes a left turn. The borrower would then have 30 days to provide a sworn financial affidavit and copies of 3 years of tax returns and bank statements.  These are documents that the lender would not have been entitled to receive before obtaining a judgment against the borrower.

So, this bill essentially requires the borrower to give up the right to keep these documents private in order to….what….require the lender to give the borrower copies of the loan closing documents and get a new appraisal. The loan closing docs are available through discovery, anyway. So far, the bill seems more beneficial to the lender than the borrower.

Jim Martin 3/13/10

FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.

So, how do you take your name off the deed?  How do you take anyone’s name off the deed?  It depends on where the real estate is located.  In Florida, and in most states, you cannot literally take a name off the deed.

Here’s the reason.  Many people think houses are like cars.  Cars have title certificates, so houses must, too. But they don’t. At least not in Florida.

Vehicle title registration systems are mostly a 20th century thing. Cars are, too.  Land ownership, on the other hand, is ancient. Florida land ownership laws are based on the common law of England so there are no title certificates. Instead, who owns land and houses on land is determined by searching the public records where deeds are recorded. The last deed recorded usually says who the current owner is.

Of course, that’s why you need title searches and title insurance: to cover those times when the last deed does not name the current owner.

So, how do you get someone’s name off the title to real estate in Florida?  It depends. Sometimes it takes recording another deed. Sometimes it takes recording a death certificate. It all depends on the facts and the state of the title. Which is what lawyers and title companies help you do.

Jim Martin 3/10/09

FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.

Here are 10 steps to starting a business in Florida. Sure the economy sucks. But for many people, this is the best time to start a business. It’s one way to create another revenue stream. And it’s not difficult to start. And there’s no better place than Florida. In fact, it’s the most popular state for opening a business. More new businesses are opened in Florida than any other state. So here are the 10 steps to opening a business in Florida:

0-Hire a lawyer and an accountant: It’s not a necessity, but before taking the first step, it’s wise to hire a lawyer and an accountant to help you form the entity, set up the accounting books, and talk to you about your business plan. Oh, yes, I assume you have a business plan.  You know, something in writing that says what the business will do and how it will do it, what it will sell, what it will charge, what its expenses will be, who will its customers/clients be, etc.

1-Form the entity: You need 4 things to form the entity. First is a name. See my 2/16/10 blog entry about this. Second is an address. You can use your home address if you don’t have a separate office. Third is a director, officer, manager, member, etc. Who is/are the person/persons who will manage the entity? Fourth you need a type of entity. In Florida your primary choice is between a corporation, LLC or partnership. Each has different tax and legal consequences. Your lawyer and accountant can assist in choosing. I like corporations best, but LLCs are very popular. A corporation or LLC is formed by filing articles of incorporation or organization with the Florida Division of Corporations. Then you hold an organizational meeting, issue stock, sign minutes, etc. And you might want to register the trademark in your business name. All of the items in this step are best done with the help of your Florida lawyer.

2-Open a bank account in the entity name: The bank account is where all the business revenues will be deposited. Never put the revenue in your pocket.  Deposit receipts to a bank account for accounting and tax reporting. The bank account should be in the exact same name as the entity. You can use Quickbooks or other accounting software. (Your business has a computer, I hope.)

3-Get licenses: There are many kinds of licenses that might be required. An occupational license is often required by cities and counties to open any kind of business. Specialty licenses are required from the state for real estate sales, building construction, cosmetology, law, accounting, nursing, doctoring, etc. In addition, some cities and counties have separate licensing requirements, such as for carpenters and painters. Your lawyer and accountant can help you here, and you can search the Internet, and you can ask others in those businesses to find what’s needed.

4-Get tax ID number from IRS: Every business must have an employer tax identification number issued by the US Internal Revenue Service, even if you have no employees. You can get it online.

5-Get sales tax number from DOR: If the business sells products, then it probably needs to collect Florida sales tax so it needs to register as a dealer.

6-Get insurance: What’s life without insurance? Risky. If the business has employees, it must get workers comp insurance. The business can also get liability insurance, medical insurance, vehicle insurance, etc. It’s best to get a good insurance agent and talk about all the possible insurance coverages and costs. The insurance policy should name the entity as the insured. Be sure to spell the name correctly.

7-Prepare forms and contracts: Every business needs forms and contracts. Find out what yours needs and prepare them in advance. Use your lawyer. Don’t forget that a lease is a contract. Don’t sign contracts without having your lawyer review them.

8-Get domain name, website and email: Can you do business without the Internet? Maybe, but a website is a good way to quickly and inexpensively market your new business. It’s best to register a domain name that’s the same as your business name so it’s easy for customers/clients to find online. There are copyright, trademark, intellectual property and website laws to consider as you work on this so it’s good to involve your lawyer when setting up your website, before it goes live.

9-Get employees: You may or may not need employees. Payroll is often the biggest expense of a business so you might wait until later, but once you hire an employee, you need to set up the paperwork for tax withholding and tax payments and file the Florida new hire report. Your accountant can assist you with this, and there are online services, too. And it would be a good idea to consider employment contracts, noncompete and confidentiality agreements, etc. And don’t forget that you can be an employee, too.

10-Open the doors: Monday is a good day to open the doors. You can rest up all weekend (or spend the weekend in final preparations), then start a fresh week with your new business. And if it’s a restaurant, barber shop, or other business typically closed on Mondays, you might be surprised to get new business right off the bat.

Happy New Businessing.

Jim Martin 2/23/10

FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.

When you buy real estate in Florida and when you sell real estate in Florida, it’s important to think about the kind of deed to convey real property.  There are many kinds of deeds in Florida. Here are a few of them:

If you are the buyer, you want the seller to sign a statutory warranty deed because it means the seller gives various warranties to you, such as a warranty of title. If the title fails, then you could sue the seller for breach of warranty. This is the type of deed that is usually prepared by lawyers and title insurance agents for closings in Florida. It is the type of deed specified in the form contracts issued by the Florida Association of Realtors and The Florida Bar. But, there is no law that says it must be used.

If you are the seller, you want to sign a fee simple deed because it contains no warranties but it still purports to convey fee simple title. If the contract or buyer require a warranty deed instead of a fee simple deed, then the seller can try to negotiate to sign a special warranty deed which gives the warranties only for the period of time that the seller owned the property.

If you are a trustee, personal representative or guardian, then you want to sign a special type of deed for that capacity, which is similar to a fee simple deed and gives no warranties because it would obligate the trust, estate or guardianship beyond the term of your office.

If you are not sure whether you really own the property, then you want to sign a quit claim deed. Nonlawyers sometimes mistakenly call this a quick claim deed but the correct name is quit claim deed. Doing this means you quit claim your interest to the grantee, meaning that you only convey to the grantee whatever interest you have in the property, and if you have no interest in the property then you are conveying nothing.

Of course, it’s very important to have your own attorney review any deed before you sign it. And it’s imperative that a title search and title insurance be obtained from a licensed title insurance company before you sign a deed, too.

Jim Martin  2/23/10

FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.

A special committee of The Florida Bar has proposed that Florida lawyers serve lawsuit pleadings and papers by email instead of sending paper copies by U.S. Mail, reports The Florida Bar News on 2/15/10. Lawyers would email PDFs of the pleadings and other papers instead of sending paper copies by U.S. Mail.

The special committee included a member of each of the Bar’s procedural rules committees. The new rule would appear in the Florida Rules of Judicial Administration rather than in the separate rules of procedure.

The new rule would be mandatory for attorneys, with few exceptions. The email would include the phrase “SERVICE OF COURT DOCUMENT” and the relevant case number.

I just hope spammers don’t read about this.  All they would have to do to avoid our junk mail filter is put those magic words in their spam.

Jim Martin 2/20/10

FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.