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Richard
Richard, Lawyer
Category: Real Estate Law
Satisfied Customers: 46896
Experience:  32 years of experience as lawyer in Texas. I'm also a Real Estate developer.
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my condo in florida has a rental restriction of 6 months.

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my condo in florida has a rental restriction of 6 months. my roommate has continued to live there while im staying with my parents until i find a job. my condo is threatening to evict her. is there a way around this? i read that i can somehow make her a 1 percent owner? is that true and if so is it reversible when she moves out?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Richard replied 1 year ago.
Welcome! My goal is to do my very best to understand your situation and to provide a full and complete answer for you.

Good afternoon. This is going to depend upon how your Declaration of Covenants, Conditions, and Restrictions define "owner." If your CC&R's read like most...i.e.,something along the lines of: "a person whose estates or interest individually or collectively aggregate fee simple absolute unit ownership of a unit," then, you could convey a nominal interest of 1% to a tenant to get around your restrictions regarding a rental. You would want to make sure you don't have a lease in effect at the same time because that could highlight the transaction as a sham transaction and allow the association to reject it. Also, you want to be careful about how you structure a buy-back. The best way to structure this would be as a sale for fair market value with your roommate making installment payments instead of rent. You could also enter into a right to repurchase or a right of first refusal to get it back; but, you want to make sure that there is no automatic buyback.



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Customer: replied 1 year ago.

How do i "convey" the 1%. do i need a lawyer to draw up a sale of 1% of the unit. Does this have a name? What would be the best way to word the right to repurchase or right of first refusal? can you give me an example of a document. As i am unemployed and looking for work having my roommate live there helps me not loose the condo. the condo president has always discriminated against me. for example, other unit owners have rented for longer periods of time. He has also placed a lein on my condo in the past for having a friend live with me for free. this cost me over 5000 to settle while he himself has a live in girlfriend and others have had friend live in their units for years. I am afraid of going through that again and would like to get this done as soon and as safely as possible. I do not want my roommate to own the unit and if she decides to leave i want to be able to reverse this easily too. i have recieved a letter from the president that states he wants me to pay the rental fee of $200 and then he states " we are asking you to terminate their stay here. if you do not want to follow our rules, by-laws or amendments i'll simply tun the matter over to the lawyer to start eviction proceedings at your expense " Is this possible? i am willing to pay the 200 but can he make a lawyer evict my roommate at my expense?

Expert:  Richard replied 1 year ago.
Thanks for following up. You would need to do this by a deed. The deed would transfer a 1% undivided ownership interest in the condo to the person. It would need to be signed by you as grantor, witnessed and notarized, and then recorded in the real property records of the city/county in which the property is located. You can do this yourself. I can provide you a form of the deed if you need one...just let me know. With regard to the right to buy back, simply have the person sign a document containing an agreement that you have the right to purchase the 1% interest for a specified price and/or have the right of first refusal if she wants to sell it to someone else.

Here's another thing to remember if he's treating you differently than others. Even though a HOA may the right to enforce the restrictions in the CC&R's, there are two circumstances where this right is lost...i) where the restrictions have been ignored in the past, and/or ii) where the restrictions have been selectively enforced. If, in spite of the restrictions in the CC&R's, if there are other instances where the situation exists that should fall within the restriction, then one of the foregoing must have occurred, and thus the HOA cannot then legally enforce the restriction against you.
Customer: replied 1 year ago.

thank you so much. I would like a form of the deed and a document for the other part if you can aswell for the agreement stateing i have the right to purchase the 1% interest for a price and right of first refusal. Can i make the purchase price low like $1 or does it have to be something else. When that happens and she no longer lives there do i go through the same process of of taking a new deed to the city and submitting it? whould she then be the grantor? As far as the other part about discrimination. I would like to be able to do that but do not know how. since the last time when he had given me all the trouble about my unemployed best friend staying with me i had to pay 5000 to have the lawyer drop it. my friends father who was a lawyer advised me to do it because in order to defend myself in court he said it would cost me more. How could i prove he is decriminating against me? My neighbor for example has had is girlfriend and her child live in his unit for over a year while he was living in africa and he stated that all he did was warn the president not to interfere. is it just easier to do the deed. Is there any way that i won't be able to get the 1% back? is it very risky to do this. sorry about all these questions. this is just very stressful for me and i want to be able to get this taken care of correctly and safely. thanks again.

Expert:  Richard replied 1 year ago.
Thanks for following up...you're welcome; it's my pleasure. Your risk of doing any of this is that they try to contest and reject your roommate's rights. I would object on both grounds. First, let him know you have consulted with a lawyer and been told he can't selectively enforce and you will fully contest any efforts he makes to restrict you.


The deed is set forth below.


STATE OF _______________ )
) QUIT-CLAIM DEED
COUNTY OF __________ )


KNOW ALL MEN BY THESE PRESENTS that ________________________., (hereinafter "Grantor") in consideration of the sum of One Dollar ($1.00) to the Grantor in hand paid at and before the sealing of these presents by _________________________________ (hereinafter called "Grantees"), the receipt of which is hereby acknowledged, has granted, conveyed, remised, released, and forever quit-claimed, and by these presents does grant, convey, remise, release and forever quit-claim unto Grantees, their heirs and assigns, all of its right, title and interest including any remainder interest, in the following described property:

[Property Description]


Together with all and singular the rights, hereditaments and appurtenances to said premises belonging or in anywise incident or appertaining; to have and to hold all and singular the premises before mentioned unto the Grantees, and the Grantees’ heirs and assigns forever, so that neither the said Grantor nor Grantor's successors and assigns, nor any other person or persons claiming under Grantor shall at any time hereafter by any way or means, have, claim or demand any right or title to the aforesaid premises or appurtenances, or any part or parcel thereof, forever.
WITNESS the Grantor's hand and seal this _____ day of ________________, 20__.


{Signatures appear on following page} 

Signed, sealed and delivered in the [Grantor Signature Block]
presence of the following witnesses:


_______________________________


_______________________________


STATE OF ________________ )
) A C K N O W L E D G M E N T
COUNTY OF ___________ )


Subscribed, sworn to and acknowledged before me by ____________________, Grantor, this ________ day of ____________________, 20__.


(L.S.)
Notary Public for _____________
My commission expires:




Right of first refusal agreement:



Notwithstanding anything to the contrary contained herein, if for any reason Purchaser decides to sell her interest in the house, Seller shall have the right to purchase each such interest. In such event, Purchaser shall give Seller a notice of its intention (the “Transfer Notice”) (i) specifying the the proposed price and the other terms and conditions upon which the Purchaser intends to sell, and offering to sell such interest to Seller, free and clear of all liens and encumbrances, for the price and upon the terms and conditions set forth in the Transfer Notice.
(b) Upon receipt of the Transfer Notice, Seller shall have a period of thirty (30) days after Seller’s receipt of the Transfer Notice to elect (i) to accept the offer set forth in the Transfer Notice, (ii) to reject the offer set forth in the Transfer Notice and advise the Purchaser that it does not desire to purchase upon the terms and conditions set forth in the Transfer Notice but that it would be willing to purchase upon certain other terms and conditions, which other terms and conditions shall be communicated in writing to the Purchaser upon which Purchaser shall then have 15 days to either reject or accept Seller’s other terms and conditions (and if Purchaser fails to notify Seller within such 15 day period, Purchaser shall be deemed to have rejected Seller’s other terms and conditions), or (iii) to reject the offer set forth in the Transfer Notice and approve the Transferee.
(c) If Seller fails to give the notice to Purchaser pursuant to Paragraph (b) above within such thirty (30) day period, the Seller shall be deemed to have elected to approve the Transferee pursuant to subclause (b)(iii) above, whereupon Purchaser shall be allowed to sell to the proposed Transferee.
(d) Should Seller elect to purchase pursuant to the Transfer Notice,pursuant to the purchase price and upon the terms set forth in the Transfer Notice or upon such other terms as may be negotiated by and between Seller and Purchaser, the closing of the purchase of any such Lot shall take place within thirty (30) days from the date the Seller notifies Purchaser of its election pursuant to Paragraph (b) above.
Customer: replied 1 year ago.

thanks again, i'm just want to be clear. do you think i should notify him in writing first of having spoken to a lawyer and that he is unable to selectively enforce? or should i go head with the deed right away? In the mean time should i pay the rental fee? In the past he put a lein on my condo for not paying the rental fee because it states somewhere in the laws that guests over 3 weeks are considered renters. That is why i had all those fees. he for sure has not paid a rental fee for his girlfriend nor has anyone else living with someone. Will he be able to go to the condo lawyer and make me pay fees for an eviction from my unit without my permission? if i do the deed to my roommate can she somehow later refuse to sign a deed giving the 1% back to me? can a make a document up stating that she will deed it back once she moves out and or the terms of her payments to me for the 1%? should i have her make a deed up giving it back to me at the same time? how would this look?

Expert:  Richard replied 1 year ago.
You're welcome. I would notify him immediately that you are not going to pay the rental fee because you have come to be aware that he is selectively enforcing the restriction and thus loses the right. Let him know that should he place any lien on your property for non-payment, you intend to contest it by filing suit against him for actual and punitive damages for breach of fiduciary duty to the owners. Let him know that you are transferring a portion of your interest to another person and that you will thereafter be co-owners and thus this will become irrelevant.
Customer: replied 1 year ago.

that sounds doable! thanks so much. i will do the deed but what type of document do i need to have with her in order to be able to get that 1% back?

Expert:  Richard replied 1 year ago.
You're welcome..it's my pleasure. You need to simply provide the language that I provided in a document entitled "Agreement." You will name the parties to the agreement, then set forth that: i) Whereas you are transferring a 1% undivided interest in the property to the person; ii) Whereas both of you agree that you shall have a right of first refusal with regard to this interest should the person decide to sell it; and iii) Whereas, the two of you are entering into this agreement to document that right of first refusal. Then do a "Now, Therefore, for and in consideration of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the two of you agree as follows:" You then put in the language I gave you before and then both sign it.
Richard, Lawyer
Category: Real Estate Law
Satisfied Customers: 46896
Experience: 32 years of experience as lawyer in Texas. I'm also a Real Estate developer.
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Richard
Richard
Real Estate Lawyer
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32 years of experience as lawyer in Texas. I'm also a Real Estate developer.