Q. What is the difference between cooperatives and condominiums?
A. In a “condo” arrangement, a person legally owns a particular unit in a multiple unit structure of building. Plus, under a typical arrangement, the owner has a share and a right to use common property (i.e., hallways, elevators, gardens, swimming pools, club house, and so forth) within that structure. Monthly payment to an “association” for expenses incurred in maintaining the common property are normally required. The association gains its legal authority from the legal documents which create it - declarations, by-laws, and articles - and these associations typically run like a corporation and may be managed by professional property management companies. There are usually complaint and appeal processes built into the association documents to protect individual rights and to provide a mechanism for resolving controversies within the community, as well for selecting the members of the board that oversees management of the association.
In a “co-op”, the person does not own a specific unit in the building but owns stock in the corporation that actually owns the building and all the units. A person leases the unit from the corporation. The unit’s size determines the number of shares of stock the person must purchase. Monthly fees based on the number of shares of stock are assessed for the mortgage payment, taxes, and general operating expenses. Each shareholder has a say in electing the board, with the person’s influence based on the number of shares he holds.
Q: A broker for a large real estate office maintains an escrow account at a local bank. With the slump in real estate sales, there are fewer sales associates in the office, so the broker does more sales. Thus, he needs to hire an accountant to prepare the monthly reconciliation statement. May someone other than the broker prepare this reconciliation statement?
A: Yes. Rule 61J2-14.012, Florida Administrative Code, requires that the broker cause, once monthly, the reconciliation statement to be made. The accountant may prepare the actual statement, but pursuant to rule 14.012 the broker is still required to review, sign and date the monthly reconciliation statement. Additionally, the broker is ultimately responsible for the funds in escrow.
Q. A client has an easement on his beachfront property and the public is repeatedly cutting across the easement boundaries and walking over his yard and flower beds. What is the line between easements and encroachments?
A. Easements and encroachments affect ownership of land. People may have been traveling across that land for years to gain access to adjacent property, such as the beach or even the house next door. Benefits and burdens run with the land - what was obtained when then owner acquired the property from the previous owner is passed along. The easements and encroachments may continue, whether they be benefits or burdens upon the land, which existed at the time that the owner acquired the land continue.
An easement is the right of a “no owner” to use your client’s land for a designated purpose, such as accessing the beach. A right of way is a form of easement granted by the property owner that gives the right to travel over the land and to have the reasonable use and enjoyment of the property to others, as long as it is not inconsistent with your use and enjoyment of the land.
These principles had their origin in traditional common law that governed, for example, the free flow of water or allowed neighboring landowners to travel over another’s property (an informal “road system”).
Although ownership rights of property are lessened by an easement, society at large benefits due to the additional freedom of movement.
An encroachment is an unauthorized entry upon land of another; whether or not an obstruction is placed upon the land.
Traditional common law created the action of trespass for injury to your property (such as trampling your client’s flower bed) when another interfered with the property rights by an unauthorized and direct breach of the boundaries of the land, enabling your client to bring a lawsuit to recover damages for the intrusion.
Q. Describe “eminent domain”
A. States and localities and the federal government have the right of “eminent domain”, which means they can condemn and force the sale of private property for public purposes. For example, the government condemns a block of homes because it needs the property to build an interstate highway. An individual’s rights are subordinate to the government. When private property is taken by the government, the owner is entitled to receive just compensation for his property.