You Might Need A Litigator If…

By Andrew J. Wozniak, Esq. –

You might need a litigator if you are contemplating hiring a company to do any major improvements or repairs to or repairs to your house. Re-doing a kitchen, hiring a painter, re-carpeting your condominium, or any other major improvement that involves a lot of money will inevitably require a contract that will likely involve construction lien laws. Construction liens provide protection for the general contractor who performs the work and, in some cases, the company that provides the materials. It provides protection by enabling a company to place a lien on your property to ensure that the company is paid. If you have a dispute with the company involving the performance of the work or the billing, the company will seek to foreclose the lien and sell your property at public auction if it prevails. It is critical to understand your rights in this context to ensure that the contractor performs the work that it agreed to perform and is paid timely for its efforts. Most issues arise due to misunderstandings regarding change orders, additional cost, and the scope of work. Retaining counsel at this point can assist you in negotiating with the contractor to get the work done and prevent you from being overcharged.

Additionally, some condominium and homeowner association declarations impose restrictions on the types of improvements that can be made to your home. For example, a condominium may restrict a second floor unit owner from replacing carpeting with wood flooring because of noise concerns. If you understand the extent of the regulations before approaching a contractor, you may be able to ask the contractor for other options that may provide a similar level of soundproofing. You can then approach the association for approval and avoid the situation where you have paid a contractor for wood flooring that needs to be removed because of non-compliance with your declaration.

You also might need a litigator if you are about to borrow a significant amount of money for your personal or business use. Let’s be honest: loan documents are drafted to protect the bank because the bank is lending the money. It is safer to understand the implications of those documents in the event of a default before signing them. I have seen far too many individuals ask for advice after they have defaulted on their loan payments and become frustrated with the process because of the manner in which the loan documents were drafted. While we can assist with resolving your dispute with a bank in the event of a default, we can provide more assistance to you earlier on in the process by negotiating with the bank as to what is included in the loan documents. For example, a bank may insist that you personally guarantee a business loan as a matter of course. However, the bank may be willing to accept a less onerous form of collateral, such as requiring your business or personal account to be placed with the bank, instead.

You might need a litigator if you are about to enter into a residential or commercial lease, as either a landlord or a tenant. Most people do not even remotely consider the consequences of a broken landlord/tenant relationship at the time that they sign the lease because it is the farthest thing from their mind. A landlord may not realize that, in some circumstances, the security deposit must be kept in an interest bearing account at a bank located in Florida. F. S. § 83.49. A tenant may not fully understand which party is responsible for repairs or whether improvements need the consent of the landlord. Neither party may understand the default and notice requirements that can either make or break the case for eviction and/or money damages in court. Asking a litigator to review your lease before you sign it will help ensure that the landlord/tenant relationship proceeds smoothly, remains profitable for both parties, and protect you in the event of a default.

You might need a litigator if you are having difficulty paying your mortgage or condominium or homeowner association assessments. Despite the public perception, most banks and associations would rather have you remain in your home and continue to pay your dues. Banks are not in the real estate business and do not want to retain property. Associations typically do not want to own property, either. One less paying unit means every other unit must pay that much more, which lowers the property values in the community. After many years of foreclosures grinding through the court system, there are increasing opportunities to negotiate payment plans with banks and associations.

In the past, associations have been very eager to foreclose on units in an attempt to encourage the bank to foreclose its mortgage. Doing so may get the attention of the bank, but may also dramatically reduce the recovery of unpaid assessments after a foreclosure sale. Florida law provides that a bank that obtains title after a foreclosure sale is required to pay the lesser of 12 months of the unpaid dues or 1% of the principal mortgage debt, whichever is less. If someone other than the foreclosing entity is the successful bidder, then that entity must pay the full amount of unpaid assessments. If the association is the successful bidder, however, then the unpaid assessments, no matter how significant, are wiped out. As a result, there is more opportunity to negotiate with an association if you cannot pay the full amount owed at once.

Statistically, most people have no contact with the court system in their lifetimes. Spending a few minutes with a litigator can help you remain in that group.

Andrew J. Wozniak‘s practice focuses primarily on commercial and residential foreclosures and workouts, creditor and debtor law, construction law, condominium and homeowner association disputes, and real estate litigation matters. Mr. Wozniak is licensed to practice law in the states of Florida and Pennsylvania. Prior to joining Salvatori, Wood & Buckel, P.L., Mr. Wozniak served approximately for three years as a judicial clerk for the Court of Common Pleas in Pennsylvania, and, prior to that, he participated in an internship at the Arts, Sports, and Entertainment Law Clinic at the Dickinson School of Law at the Pennsylvania State University.

Salvatori, Wood & Buckel
239.552.4100
www.swbnaples.com