Real Estate Conveyance Involving Same-Sex Marriage

As of today, there are currently only 19 States (plus Washington, D.C.) which recognize same-sex marriage, as follows:

Court Decision	State Legislature	Popular Vote
California (06/28/13) Connecticut (11/12/08) Iowa (04/24/09) Massachusetts (05/17/04) New Jersey (10/21/13) New Mexico (12/19/13) Oregon (05/19/14) Pennsylvania (05/20/14)	Delaware (07/01/13) Hawaii (12/02/13) Illinois (06/01/14) Minnesota (08/01/13) New Hampshire (01/01/10) New York (07/24/11) Rhode Island (08/01/13) Vermont (09/01/09) Washington, D.C. (12/18/09)	Maine (12/29/12) Maryland (01/01/13) Washington (12/09/12)

There are a  number of law suits challenging state bans on same-sex marriage that are working their way through the courts in all the remaining states (except North Dakota). In addition, thousands of same-sex couples were married during brief periods of time when it was allowed in some states before an appeal was filed and/or a stay was granted, leaving those persons in a state of limbo. Despite the full faith and credit clause of the U.S. constitution, recognition in one state has not translated to recognition in all other states. As such, this matter is very likely to go to the U.S. Supreme Court for the next term.

Any conveyance of property to/from same-sex couples in states that do not recognize such marriages at the time of the conveyance could present a challenge (and a title nightmare). Traditionally, deeds to/from married couples (of opposite sex) were often written to include "husband and wife" or "tenants by the entireties" after the names of the parties. Such language ensured that ownership and succession of title would remain with a surviving spouse. With the evolution of marriage in some states to include same-sex couples while still being unrecognized in others, care must be taken with the language on deeds of conveyance both to ensure survivorship upon the death of one party, but also to reduce potential problems with a subsequent transfer of the property if the same-sex couple wishes to dispose of it.

For states in which same-sex marriages are recognized, "tenants by the entireties" may be the most accurate language, although rather formal and perhaps not well understood by non-attorneys or real estate professionals. Another option might be "a married couple." However, for states in which same-sex marriages are not recognized, such language may have no legal effect, meaning the couple would own the property as joint tenants (two individuals instead of one married couple). Title held in such a manner means that each person owns 50% of the property and upon the death of one party, his/her interest will be conveyed pursuant to his/her will or the intestacy statutes of the state in which the property is located. That means the heir(s) of the decedent could take ownership jointly with a surviving owner. It could also present a challenge when trying to transfer the property. To help prevent any subsequent transfer problems and to ensure that a surviving spouse in a same-sex marriage takes ownership of the property, I recommend that title be conveyed in non-recognition states as "joint tenants with right of survivorship." If the relevant state later recognizes same-sex marriages, the couple may choose to deed the property to themselves as "a married couple", "tenants by the entireties", or whatever nomenclature is prevalent in that jurisdiction.

Florida Power of Attorney

Effective October 1, 2011, the Florida legislature revised the Florida Power of Attorney Act (the "Act") which eliminated “springing” POAs and changed some of the requirements in order to authorize an agent to act on behalf of a principal.

Definition

A power of attorney (POA) is a legal document which delegates authority of one person (the principal) to another (the agent/attorney-in-fact). A POA can be durable (not terminated by the later incapacity of the principal) or nondurable (terminated by the later incapacity of the principal). A POA not designated as “durable” will be considered nondurable. As such, language should be included to indicate the later disability or incapacity of the principal or the lapse of time shall not affect the validity of the powers granted to the agent. 

Requirements

A Power of Attorney must be: (i) signed by a principal; (ii) with two subscribing witnesses; and (iii) before a notary public. The principle must sign or initial next to specific clauses in the document before an agent may exercise certain powers. It is no longer sufficient for a principal to just sign at the end of a list of powers in the document. However, general references (such as “my agent has authority to conduct banking transactions”) will bestow broad powers on an agent as it is no longer necessary to separately itemize each of the banking transactions which an agent can now perform.  

Qualifications, Actions, and Resignation

An agent must be (i) a natural person 18 years of age or older, or (ii) a financial institution that has trust powers, maintains a place of business in Florida, and is authorized to conduct trust business in Florida. A principal may designate one or more agents and each agent now has full authority to act independently. An agent may select only certain powers designated to them. Resignation can be affected by notice to the principal, the principal’s guardian, or a successor agent.

Estate Planning

An agent’s authority regarding a revocable trust must be specifically enumerated and may be exercised by an agent only if (i) the principal signs or initials next to the specific enumerated power, (ii) the authority to exercise is consistent with the agent’s duties, and (iii) the exercise is not otherwise prohibited.

Authority

A photocopy, electronic copy, or original power of attorney will now be honored by financial institutions. An attorney-in-fact may initial litigation to contest a third party’s refusal to honor the POA. The acceptance of copies may create situations where the principal has revoked the agent’s authority, but the agent may present a copy of the POA and continue to act on behalf of the principal without his knowledge or consent. Therefore, the principal should notify others when a POA has been revoked. Death of the principal extinguishing any existing POA.

Pre-October 2011 POAs

POAs often were drafted to become effective upon the occurrence of an event such as the disability or incapacity of the principal (i.e., springing POA). The Act eliminated such springing authority and now POAs are effective immediately upon signing. POAs executed prior to October 1, 2011, may or may not still be valid. A qualified attorney can review the POA to determine the extent of its enforceability, and whether the document should be updated to comply with the latest requirements of Florida law.

A Power of Attorney can be a useful tool by allowing another to handle matters for you. Bear in mind, however, that this document grants very broad powers to the agent and care should be taken to designate a reliable, responsible person as your agent.

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Tim Martin is the owner/attorney of Martin Law Office, P.A., a solo practitioner law firm in the Tampa Bay area of Florida. Martin Law focuses on animal law, business law, estate planning/probate, LGBT issues, and real property.

Martin Law Office, P.A.

10200 Gandy Blvd. N. #1014

St. Petersburg, FL 33702

Tel: 813-260-1413

Fax: 888-250-6501

Email: timm@martinlawfl.com

www.martinlawfl.com

Catching Up With Legal Headlines of the Day

Let me borrow a line from the Catholics and begin with "Forgive me, Father, for I have sinned." It's been many months since I last posted anything on my blog. Although I make no bones about this being an "occasional blog", I realize the error of my ways in neglecting to write anything for so long. I will try to do better. Today's blog will hit upon some legal issues recently in the news. As always, these are my opinions, and I welcome yours - as long as you're polite and respectful.

Gay Marriage

The Supreme Court of the United States recently ruled that the federal government could not deny federal benefits to legally-married same-sex couples. U.S. v. Windsor, 570 U.S. ____ (2013). The Court also ruled in California's Proposition 8 case that marriage equality opponents lacked standing to defend its constitutionality when the state refused to do so. Hollingsworth v. Perry, 570 U.S. ____ (2013). Taken together, these two decisions bring hope to millions of same-sex couples and energize efforts in many states to remove same-sex restrictions on marriage. The tide of public sentiment has turned with a majority of Americans supporting marriage equality. CNN/ORC International poll (June 11-13, 2013). These Supreme Court rulings do not, however, fully open the door for gay couples in states where same-sex marriage is still banned. Couples in states with bans on gay marriage still face disparate treatment at the hands of government, and also face discrimination. Such couples face difficulty navigating federal laws and regulations to obtain the benefits the Supreme Court has decided they are entitled to.

Thirteen states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington) and the District of Columbia have legalized same-sex marriage.  It is my humble opinion that same-sex marriage should be allowed in all states and territories of the United States of America. Discriminatory action and sentiment of the past must be cast aside for a fair and tolerant America.

Trayvon Martin / George Zimmerman

Only two people know what really happened that night almost two years ago in Sanford, Florida. News accounts, court testimony, and public gossip all paint somewhat different versions of what transpired between Trayvon Martin, a black teenager visiting from out of town, and George Zimmerman, a neighborhood watch patrolman. The only thing that is known without a doubt is that a skirmish between them resulted in the death of Trayvon Martin. Six jurors heard testimony and saw evidence in the second degree murder trial of George Zimmerman. Those six jurors ultimately concluded that there was insufficient evidence to convict Zimmerman of murder.

Many people have very strong feelings about the verdict. It is difficult for me to understand why, aside from the obvious loss of life that we should all be upset about. Our system of justice, while not perfect, does work. The state has the burden of proving, beyond a reasonable doubt, the case against the defendant. If the state does not meet that burden, the jury must find for the defendant. Although certain people may be very upset about the outcome of this trial, those same people would appreciate how heavy the state's burden is if they were a defendant.

As I have read or watched news accounts about this - and the resulting demonstrations, inflammatory remarks made by athletes, calls by celebrities to boycott Florida, etc. - I wonder at what age people in the United States (and elsewhere) become prejudiced. The color of our skin should not be an issue. It is time that America lay down its arms in the race fight, and embrace each other as equals. When little children of difference racial backgrounds meet each other for the first time in playgrounds or schools, they might be curious as to why they look a little different - and that is understandable - but two minutes later they couldn't care less. They play with each other and have a good time. It's only the adults that seem to have a problem, who continue to perpetuate racial tension and prejudice. Let's all learn from the kids and start becoming "racially blind."

More Pet Food Recalls

The FDA continues to announce pet food/treat recalls. Please be sure to review the announcements and check your pet's products against the list to see if it should be discontinued. Most stores will take the product back. If your pet has gotten ill, save all packaging for tests and consult a veterinarian immediately.

Pets with Salmonella infections may be lethargic and have diarrhea or bloody diarrhea, fever, and vomiting. Some pets will have only decreased appetite, fever and abdominal pain. Infected but otherwise healthy pets can be carriers and infect other animals or humans. If your pet has consumed the recalled product and has any of these signs, please contact your veterinarian.

Healthy people infected with Salmonella should monitor themselves for some or all of the following symptoms: nausea, vomiting, diarrhea or bloody diarrhea, abdominal cramping and fever. Rarely, Salmonella can result in more serious ailments, including arterial infections, endocarditis, arthritis, muscle pain, eye irritation, and urinary tract symptoms. Consumers exhibiting these symptoms after having contact with this product should contact their healthcare providers.

Kasel Associated Industries Recalls Nature's Deli Chicken Jerky Dog Treats Because of Possible Salmonella Health Risk

Contact: (800) 218-4417

Kasel Associated Industries of Denver, CO is voluntarily recalling its NATURE’S DELI CHICKEN JERKY DOG TREATS product because it may be contaminated with Salmonella. Salmonella can sicken animals that eat these products and humans are at risk for salmonella poisoning from handling contaminated pet products, especially if they have not thoroughly washed their hands after having contact with the pet products or any surfaces exposed to these products.

Kasel Associated Industries Recalls Boots & Barkley Roasted American Pig Ears And Boots & Barkley American Variety Pack Dog Treats Because of Possible Salmonella Health Risk

Contact: (800) 218-4417

Kasel Associated Industries of Denver, CO is voluntarily recalling its BOOTS & BARKLEY ROASTED AMERICAN PIG EARS AND BOOTS & BARKLEY AMERICAN VARIETY PACK DOG TREATS product because it may be contaminated with Salmonella. Salmonella can sicken animals that eat these products and humans are at risk for salmonella poisoning from handling contaminated pet products, especially if they have not thoroughly washed their hands after having contact with the pet products or any surfaces exposed to these products. The recalled Roasted Pig Ears and Variety Pack Dog Treats were distributed nationwide through Target retail stores in August 2012.

Premium Nutritional Products Announces Ongoing Voluntary Recall Of Select ZuPreem Bird Foods
Contact: 800-345-4767

On September 27, 2012, Premium Nutritional Products, Inc. initiated a voluntary recall of ZuPreem FruitBlend™ With Natural Fruit Flavors maintenance formula bird foods for medium/large birds and for large birds with use by date codes of 11/30/13 or 11/13 and lot numbers 598405052 or 598405072. The recall is being conducted due to the product containing the combination of exceedingly high calcium levels, low phosphorus, and high vitamin D concentration resulting in a significant health risk to the birds.

 

Change Your Windows Password

Today's blog posting is just a simple security tip for computer users: how to change your Windows logon password.

 

Your Windows password is the password you use to log on to your computer. You can help keep your computer more secure by changing your Windows password regularly, and by using a strong password.

1. Log onto Windows as you normally do,
2. Press CTRL+ALT+DELETE,
3. Click Change a password.
4. Type your old password,
5. Type your new password,
6. Type your new password again to confirm it, and
7. Then press ENTER.

Service Animals and Emotional Support Animals Are Not the Same

Recently, the Fourth District Court of Appeal of Florida issued opinion No. 4D10-3038, SUN HARBOR HOMEOWNERS' ASSOCIATION, appellant, v. BONURA, appellee, wherein the Court made a statement that muddies the water with regard to service animals and emotional support animals.

"[t]he testimony indicated Ms. Vidoni was able to travel and work without the dog." (emphasis added).

This blog posting is not a full review or critique of the factual or legal substance of this case. My focus here is merely to address the above statement and respectfully inform others about the dilemma presented by the Court's language, because service animals and emotional support animals are not the same.

Vincent Bonura owns a Sun Harbor townhouse where he resides with his fiancée, Natalie Vidoni, and her dog. To help her cope with depression and anxiety following an automobile accident which also left her with a physical impairment, Vidoni has an emotional support animal. Sun Harbor has a "no pets" policy. Both the Federal Fair Housing Act and the Florida Fair Housing Act provide, inter alia,  reasonable accommodation for disabled persons, including the waiver of "no pet" restrictions. 

In the simplest of terms, the purpose of emotional support animals is to provide comfort and companionship and thereby relieve stress, anxiety and other barriers to permit a disabled person to better cope and handle life's major activities, including caring for oneself. On the other hand, the purpose of service animals is to provide assistance to disabled persons, such as retrieving objects, providing alerts, opening doors, guiding blind persons, and otherwise helping the disabled person by actually doing some task. 

Service animals are trained to provide a particular service or do a particular task. Although state law varies, federal law does not demand that service animals receive certified training. The service animal may receive such certified training or can be trained at home. As long as the animal is trained to provide a service to a person with a disability and provides such service, the animal is a service animal. Service animals are not considered pets and they are generally permitted to go everywhere the disabled person goes.

Emotional support animals, as stated above, do not provide a particular service or perform a particular task, nor do they generally receive any training. Their basic purpose is to help a disabled person cope. As such, they are not considered service animals and are not permitted to go everywhere the disabled person goes like service animals are. Disabled persons routinely travel, go to work, and do other things without the emotional support animal accompanying them. It is precisely because the emotional support animal is at home that some disabled persons can cope well enough to travel and go to work. 

The Court's assertion that Vidoni could travel without her [emotional support] dog indicates the difficulty in presenting cases involving such animals. Part of the lawyer's role in such cases is to educate the court in the difference, and to present the facts appropriately with proper legal support and documentation. Part of the client's role in such circumstances is to be sure to follow the rules and regulations of the housing community, as well as the proper procedures for requesting a reasonable accommodation with supporting documentation from the client's doctor. The subsequent failure, or inordinate delay, of a housing complex to grant a reasonable accommodation is very likely to constitute a violation of both the Federal and Florida fair housing laws and both laws should be referenced in any action on behalf of a client.

Timothy C. Martin, Esq. is a solo practitioner in Tampa, Florida. His practice areas include animal law, administrative law, environmental law and land use, real estate/real propery, business organizations and transactions, LGBT issues, employment law, and mediation.

Martin Law Office, P.A.

www.martinlawfl.com

Tel: (813) 260-1413

Fax: (888) 250-6501

US Supreme Court Upholds Health Care Law

Today, the United States Supreme Court ruled 5-4 that the health care law, including the individual mandate, is constitutional. There will undoubtedly be lots of confusion as well as bickering about how the law is implemented and what it means to each person, and groups of persons. Stay tuned for more information as it becomes available.