Corporate Law

Easements in Florida

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In its most basic legal definition, an easement is the right of use over another party’s property. This use is permitted in several different situations under Florida law, and can be implemented by law or be formulated by agreement between the two parties. An example of an easement would be allowing one party access to land for the purpose of entering/exiting their own property.

As easements are directly concerned with land, under Florida law they are required to be in writing; there are known as express easements. However there are instances where easement can be implied. This notion can be applied by the courts to property if a) there was previously a vague or unclear written agreement, or b) there is a necessity for the easement, such as if there is no other manner in which one can access their property.

One thing to note is that easements are not completely permanent; for example they may be discontinued if an alternate route is constructed and thus makes the purpose of the easement unnecessary.  Another important thing for landowners to be aware of is that when created, easements only apply to the specific purpose as expressed.  Using the easement in any other manner than that which is outlined in the original agreement is not permitted. If there is a dispute regarding incorrect usage of a prearranged easement, legal action may be taken.

Regarding the party which uses the easement, if the agreed upon route is blocked than the individual may legally seek an alternate way in order to reach their destination, thus going further onto the property. If the route continues to be blocked, then the landowner can be ordered to remove said item(s). Those who hold the easements are in charge of the upkeep and maintenance of the access.

Easement disputes can also be related to property boundary lines, such as when a homeowner installs a new fence or wall which oversteps their own land and goes into a neighbor’s.  In such cases, the items may be ordered to be removed or the individual may be charged.

Florida Contract Disputes

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The purpose of contracts is to legally set out the details of an agreement between two parties. This process, although meant to clarify and define the requirements, can frequently create a dispute with regards to the terms as previously agreed. In this case legal representation is consulted on behalf of both parties, who try to reach a resolution.

In legal terms, a contact is any written or spoken agreement between two or more parties. It can be regarding any number of things: land, employment, business, sales, tenancy etc. The contract, if created correctly, should be legally binding.  Contracts involve a process of offer, acceptance, consideration, intention to be legally bound and finally certainty of terms. All parties must be of sound mind to enter the contract; for instance intoxication or those suffering from mental disorders are not considered able. Oral contracts can still be legally binding; however it is always preferable to have such agreements in writing and signed – so as to supply courts with clear evidence of terms if any issues do arise.

When it comes to contractual disputes, there are many reasons why parties may get into a disagreement. If a contract is not thorough and does not contain enough detail, then previously unforeseen issues may cause ramifications. This is why it is integral a business has expert contractual representation from the start.  Other issues commonly emerge when one party breaks the terms as explicitly set out in the contract, such as in the recent case of Sanford Burnham Prebys and the state of Florida. The state had clearly stated numerous, clear conditions in the contract that were not met – one of which was that the company had to create many new jobs. As the organization has not provided these and is considering leaving its current location (it was required to run on the site for at least 20 years) the state has demanded SBP pays $77.5 million dollars back.

When a dispute such as the above happens there are a few options for a party to consider, and they should seek a legal expert who can advise them based on the specifics of their case. In some instances, a lawyer may recommend to settle out of court through negotiation, settlement, arbitration and mediation. If these are not possible or desirable, then the dispute must be resolved in court. For a breach of contract, damages may be awarded or an injunction may be attained. Remember to always seek an expert who has a great degree of experience within this field – contact law is extremely complicated and you should always choose the best representation in order to ensure your success.

IEP Laws in Florida

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The Individual Educational Plan (IEP) is a requirement for all disabled students who are eligible for Exceptional Student Education (ESE). The IEP is the written plan and process that informs the students, parents, teachers and all other education staff which types of ESE assistances will be provided.

A child is not eligible to receive ESE until the IEP is in place – and until the parents have given permission for the services and placement.  The purpose of the IEP is to ensure the needs of each individual child are met. It will detail objectives, how best the student works, how their disability affects their learning process, and helps in choosing placement for the student in the least restrictive education environment.

Eligibility for ESE

Before a student it able to receive ESE and have their IEP program in place, the school is required to determine whether the child’s disability will have a negative effect on their educational development.  A full evaluation will be conducted and the school will meet with the parents to analyze and assess if special education services need to be introduced. If this is the case, this is when the IEP team is formed.

IEP Meetings

The first IEP is developed during the initial meeting, with a specific IEP team constructed by the school. For parents in Florida there are a number of important aspects to consider, whether this is the initial meeting or any of the following ones:

  • The IEP is unique to their child
  • There can only be one IEP running at a time for each child
  • If a parents chooses not to attend, the meeting may be held without them
  • Parents will receive a copy of the IEP, even if they do not participate
  • The IEP details the services the child will receive, and will have a beginning and end date
  • If the parent does not agree with the evaluation or recommendation, they have the right to request an Independent Education Evaluation at no cost. Parents can write “not in agreement” by their signature.
  • If a school wishes to invite individuals from other organizations outside of the school district, they must gain permission from the parent. The parent may also bring someone if they wish – it is usually recommended to let the school know, but the school may not pressure the parent into coming alone
  • When a parent signs the IEP, this does not mean they have given their permission for the program to begin –this is a different form.
  • If the parent feels rushed, they may request a continuation meeting. They do not have to sign the IEP there and then.
  • The school must gain informed consent from the parent if they believe it best for the child to go into a specialized ESE school, or if the child should not be taking the regular curriculum. If a parent does not consent, then there will be a due process hearing.

Additionally, it should be noted that:

  • The IEP must be reviewed and revised at the very least annually
  • Parents are an important part of the IEP team, and must be invited to all IEP meetings
  • Parents are to be informed how much the budget is for the ESE for their school district at the IEP meeting
  • A child may be requested to be exempt from certain examinations
  • Parents have the right to have their own professionals collaborate with schools

Further Regulations

Legally, the laws of the IEP are greatly linked to the Individual with Disabilities Education Act (IDEA), which is found in three federal statutes. If there is a conflict between the state of Florida law and federal, federal must be followed.

Florida Employment and Background Checks

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Background checks are becoming more and more common in America, and Florida is no exception. It is estimated that possibly upwards of ninety percent of employers now perform these checks; making it even harder for those with a record in this already tough job market.

What Rights do Applicants Have?

Florida law does not provide much protection for its applicants, but there are certain systems in place that give them some rights. The first is the Fair Credit Reporting Act (FCRA). This illustrates procedures that are required when it comes to employers hiring a third party organization to run a check and produce a report. This may include the individual’s credit history and criminal records. The FCRA states that all employers in this situation must:

  • Attain the applicants written consent before the check is run
  • Inform the applicant if they are not being employed based on the content of the report
  • Give the applicant a copy of the report

The applicant’s rights are that:

  • They may dispute incorrect information
  • They have a right to know what is on their file
  • They can seek damages if the FCRA is breached
  • Military personal and victims of identity theft also have additional rights

The organizations that provide these reports and checks also have certain guidelines they must adhere to.  These include:

  • Not reporting any outdated information (including arrest records over seven years old – salary dependent)
  • Correction/deletion of incorrect or unverifiable information
  • An investigation if an error occurs

Conviction records may be included, regardless of how long ago they occurred.

The second structure in place is the Civil Rights Act of 1964, which protects all applicants from any type of discrimination in the workplace; this includes the hiring process. For example, because arrest and conviction records for African Americans and Latinos are generally higher, an employer which decides to disqualify anyone with a record may be in violation of the Civil Rights Act. The Equal Employment Opportunity Commission has provided guidelines to advise employers in this area. They recommend considering the following:

  • How serious is the offense?
  • How recent is it?
  • What is the nature of the employment?

The organization has also advised employers on giving applicants the chance to explain the situation and provide any information to show that they should not be disqualified from the position due to this offense.

Additionally under Florida Law, state and local agencies cannot deny anyone a license, certificate or permit on the basis of a conviction unless it was a felony charge, a first-degree misdemeanor, or it is related to the role. However, there are different regulations when it comes to certain drug felonies.

Florida Statute of Frauds

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The Statute of Frauds, in its simplest definition, cites that certain varieties of contracts must be made in writing. All parties involved must sign the document(s) and there must be adequate content to provide evidence for the contract to be valid. For example, if you are selling a property the contract must have within it all essential terms of the transaction and sale, and must be signed by both you and the buyer. The purpose of this is to ensure that no fraudulent claims are brought to court based on oral discussion, which is difficult to prove.

Traditionally, Statute of Frauds are applicable in the following situations:

  • Marriage (including prenuptial contracts)
  • Contracts not able to be performed within the space of one year
  • Transfer of land
  • Executor of Will
  • Sales of more than $500
  • Paying someone else debt

What is a Contract?

A contract is any agreement entered into by two or more parties and can concern any number of things. It is enforceable by civil law and is usually required to be in writing, so as to protect both parties if any dispute arises.  Most usually, a contract requires offer, acceptance, consideration and mutual intent to be valid. A contract may be found invalid if it is entered into by those who are not considered of sound mind or have the capacity to agree – for example those who are intoxicated, are minors or those who suffer from mental afflictions.

Statute of Frauds in Florida

Similarly to most states, Florida’s statute of Frauds requires that certain contracts and invalid unless they are in writing and signed.  This includes sales of goods over $500 and personal property over $5000, promises to pay debt of another and land conveyances. It no longer includes sales of securities.

Oral Contracts

Oral contracts are a more complex issue when it comes to Statute of Frauds. In the past, the Florida court has ruled that oral agreements used for the purchase of property have been valid and enforced in certain circumstances, for example if the purchasing party has been given the property and has paid part of the agreed price, or has made noted improvements. This is not typical for all cases, and is dependent on the individual circumstance.

A recent ruling in the Florida Supreme Court further clarified the states position on oral contracts, in Browning V Poirier (2015). In this case, a couple had agreed to split lottery winnings in 1993. This agreement was to last for as long as they were a couple. Fourteen years later in 2007 the girlfriend won $1 million, and allegedly refused to give her partner half.  The boyfriend filed suit in breach of the original oral contract. The trial ended in favor of the girlfriend. The case was then taken to the Court of Appeal, whereupon the original trial’s decision was upheld, with the boyfriend admitting that when they entered into the agreement, they intended on being together for more than a year – the DCA referring to the intention of each parties at the making of the contract.

The case was then taken to the Supreme Court, whereupon they disagreed with the previous rulings. They held that since the contract terms did not specifically state a time period and that it could have been performed within one year, the fact it lasted longer was not relevant. The Supreme Court ruled that if a contract theoretically has the capability of being performed within a year, then the Statute of Frauds is inapplicable and thus the oral contract enforceable.

Corporate Law Attorney

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What is a Corporate Law Attorney?

A corporate law attorney’s main job is to ensure that their clients’ actions when it comes to business transactions, are in compliance with the law. The attorney must in turn research the law concerned by said transaction and advise his client of any negative consequences or effects it may create. They also must ensure their clients that the legal decisions being made will translate into a strong bottom line.

Who needs a Corporate Law Attorney in Florida?

For a great deal of things regarding you and your business, much of it can be handled by you and your team personally. However, here is a starting list of issues in cases where you’ll want to begin the process of hiring a corporate law attorney: a former, current, or potential employee is suing your business on the grounds of discrimination in firing, hiring, or for a hostile work environment; environmental issues arise and your business is involved, even if you didn’t cause the problem; local, state, or federal government bodies are filing formal grievances or are investigation your business for violation of laws; negotiating the sale of your company or the purchase of another company and/or its assets.

While these are all great examples of when you definitely should have a corporate law attorney representing you, the initial goal is to prevent much of that from happening in the first place. By the time you’re dealing with the potential of being sued or investigated, you’ll be out a lot of money already. You’ll want to mainly focus on representational tactics in the initial phases of managing your business so as to prevent you from spending thousands in legal fees and litigation later on.

However, when it comes down to it, it’s better to hire a lawyer to represent and fight for you and your business instead of risking taking on the legal issues on your own. A corporate law attorney has years of education and experience to back them up and help be sure to keep your business not only afloat, but also thriving after the outcome of your legal disputes.