Miami Lawyer Blog

Attorney Aaron Resnick will be the main speaker at "Defending a Foreclosure:
Helping Families Save Their Homes". The engagement will be January 22, 2013 • Miami, FL. For more information or to purchase tickets, please go to http://lawreviewcle.com/seminars/2013-01-22-Miami_FL-defending-a-foreclosure.html.

Defending a Foreclosure: Help Families Save Their Homes LawReviewCle's Foreclosure Defense in America is an in-depth examination of the tools you will need to build a successful foreclosure defense practice, along with a detailed treatment of the emerging pleading, discovery, trial and appellate strategies you need to achieve results for your clients.

This course offers practical, real world advice on how to find clients, how to successfully manage a profitable caseload and how to employ the new PST negotiation and trial strategies that will help you develop a loyal base of satisfied clients. Whether you are currently representing clients in foreclosure and want to know the strategies and tools that are producing real results in this dynamic and ever-changing area of the law or whether you're looking to expand your practice to include this most rewarding practice area, this course will provide invaluable resources for you.

See Agenda

Key Topics

The Present State of the Foreclosure Crisis
Mortgage Securitization Issues
Understanding Basic Substantive Law
Client Relations
Judicial vs. Non-Judicial Foreclosures (Hunter or Hunted?)
Loan Modification / Short Sales / Deed in Lieu / Tax Issues
Bankruptcy Issues
Ethical Considerations

Speaker

Aaron R. Resnick
Attorney Aaron R. Resnick
Law Offices of Aaron Resnick, P.A. - Miami, FL

Aaron Resnick, a graduate of Leadership Miami, is a leader in the Miami's legal and cultural arts scene. Mr. Resnick was awarded the "Shining Star" Award by the Arts & Business Council of Miami, Inc. This award each year honors the top Miami business professional supporting the arts and cultural community. Mr. Resnick was the founding chairperson of the Friends of the New World Symphony, and now serves permanently on its Executive Committee. He also sat on the Board of Directors for the Miami Design Preservation League for over 10 years. He has served on the executive committee for numerous young patron groups in South Florida including, but not limited to: Best Buddies of South Florida, Big Brothers Big Sister's Impact Circle, Art Crowd of the Bass Museum, the Green Room Society for the Center for Performing Arts, the Tropees of the Historical Museum of Southern Florida, the Jewish Legal Society of Miami, and the MOCA Shakers amongst others. He is a member of the South Beach Athletic Club and an active in local, state and national politics. He is a Regional Board Member of the Maccabi World Union and a member of the Ben Gurion Society of the Greater Miami Jewish Federation.

Currently, he is a member of the Silver Director's Circle for the Bass Museum, the Leadership's Circle for the Museum of Contemporary Art (Miami), the Maestro's Circle for the Friends of the New World Symphony, and a Supporting Member of the Adrienne Arsht Center for the Performing Arts (and a member of the Green Room Society). Mr. Resnick recently founded, with several friends, the Little Lighthouse Foundation, www.littlelighthouse.org, which is a Miami based charity that seeks, identifies and provides support to children and their families with health, educational, and financial challenges.

Professionally, Mr. Resnick is an attorney, who honed his craft at one of Florida's oldest and most prestigious firms, Gunster Yoakley, before starting his own boutique law firm in 2005 with offices now in Miami, Boca Raton, Gainesville/Ocala, Jacksonville and New York City. Mr. Resnick is admitted to all of the state and federal courts in Florida and the United States Supreme Court.

Mr. Resnick's law practice concentrates on business and commercial matters, and sports and entertainment law. He has successfully represented a number of clients in commercial foreclosure matters and has a company that specializes in working with lenders on distressed assets.

His current practice also includes the personal representation of a number of current and former professional athletes in the National Football League, the National Basketball League and Major League Baseball, as well as members of the arts, fashion and entertainment world. Mr. Resnick himself is an avid collector of art, and is in a partership with a famous celebrity photographer promoting and marketing his photographs, www.artofthenight.com. Mr. Resnick has lectured on art fraud and is in the process of writing a book related to some of the major art fraud cases of the 20th century.

In addition to being an attorney, Mr. Resnick is one of the owners of Faction Capital, LLC, a distressed asset consulting firm, and AJAX Entertainment, LLC, a marketing company targeting young professionals and patrons of the cultural arts.

Awards & Recognition

Florida Trend's Florida Legal Elite, 2009, 2010
Super Lawyers Magazine Florida Rising Stars, 2010, 2011
Film, Recording and Entertainment Council Entertainment Law Award
South Florida Business Journal 40 Under 40
Cystic Fibrosis Foundation 40 Under 40 Attorneys
Cystic Fibrosis Foundation 40 Under 40 Business Professionals
"Shining Star" Award by the Arts & Business Council of Miami, Inc.
American Bar Association Young Lawyers Division "Star of the Quarter"

Profession & Bar Association Membership

State of Florida, 1998
United States Supreme Court , 2004
United States District Court for the Southern and Middle Districts of Florida, 1999
United States Court of Appeals, 11th Circuit, 1999
Florida Bar - Member Business Law Committee and Sports & Entertainment Law Committee
American Bar Association - Member Business Law Committee
Dade County Bar Association
Miami Beach Bar Association
Pillar Member of the Miami Beach Chamber of Commerce
Member of the United States-Mexico Chamber of Commerce The Inter-American Chapter
Member of the India-US Chamber of Commerce South Florida
Member of the America-Israel Chamber of Commerce Florida Chapter
Member of the Florida China Chamber of Commerce
Member of the Italy-America Chamber of Commerce Southeast
Member of the Panamanian American Chamber of Commerce
Member of the Columbian American Chamber of Commerce
Member of Canadian American Chamber of Commerce of South Florida
Member of the banking committee for the Asian American Hotel Owner's Association

Education

J.D., University of Florida Levin College of Law, Gainesville, Florida, 1995-1997
with Honors.

Universite de Montpellier, Montpellier, France, 1997
with High Honors.

B.A., Emory University, Atlanta, Georgia, 1990-1994

A business leasing commercial property must be careful in agreeing to and signing a lease. Beyond the dollars and cents of the agreement and the location and layout of the premises, a business leasing real estate (a "lessee" or "tenant") must consider how to protect itself before, during and after the term of the lease.

This overview addresses these issues directly, but is not an all-inclusive summary with respect to important issues facing a commercial tenant. Leasing and contract preparation requires expertise--from the lessee, from outside consultants and preferably from an experienced real estate attorney. While the author represents commercial landlords and tenants, and has substantial legal experience in real estate and leasing matters, this article should not be construed as formal specific legal advice to the reader, nor should the reader consider the author to be his/her attorney solely on the grounds of having read this article. Every tenant, every owner and every lease is unique and advice for particular circumstances really does require individual review and consideration.

Legal disclaimers aside, a lessee who wants to adequately plan for the future while protecting themselves from potential liability, unwarranted responsibilities and unnecessary legal fees should consider the issues detailed below with respect to the following five lease provisions, which commonly should be a central focus of any commercial tenant.

1. Use Limitations, Exclusive Use Provisions and Maintenance Obligations
Overview

While the intended use of the property has undoubtedly been considered well in advance of the signing of the lease agreement, it is essential that a tenant negotiate sufficiently broad limitations and inclusive language with respect to any use limitations on the premises. Due to assumptions, prior informal conversations and failure to consider potential ramifications, a tenant may overlook this important portion of any lease. Additionally, a tenant must be aware of neighboring locations within the same shopping center or similar environment which would directly compete with the tenant's business. When possible, a provision should be included barring other similar businesses that would compete with the tenant. Finally, a tenant must demand clearly defined maintenance and repair obligations.

The following considerations are recommended:

Broadly define the permitted use of the premises. The lease should broadly state what the property can be used for (ex: retail clothing and apparel store, fast-food restaurant, general non-retail office space). Ideally, the lease would allow for "any lawful use" but a landlord may demand a more narrow limitation. Regardless of oral understandings, prior use or anticipated current use, the lease should provide some detail on allowed use of the premises. A tenant must consider possible changes of modifications in their business and be sure to account for such.

Negotiate the Obligations that You Undertake. A tenant should be sure that maintenance and repair obligations are clearly defined in the lease. The agreement should clearly detail who is responsible for regular maintenance, small repairs, major repairs and any needed improvements. Typically, a tenant will be responsible for daily maintenance and potentially some small repairs, but all larger or less frequent matters should be the responsibility of the landlord.

Exclusive Use Provisions. If a tenant is moving into a large shopping center, retail facility or similar premises, care should be taken to evaluate potential competition which can be limited or eliminated with careful planning. An 'exclusive use' limitation will bind the landlord to not allow any uses on the property that directly compete with the use or business of the tenant. For example, a jewelry store that leases space in a retail shopping center can negotiate a provision that precludes the landlord from leasing out space to any other jewelry store. Exclusive use provisions are only relevant and effective where one landlord owns a large shopping center or similar facility.

2. Options to Extend the Term of the Lease

Overview

While a tenant must be careful to commit to an overly extensive term to the lease (i.e. too long), it also has an interest in securing its location and preventing an unwanted move of its business. An ideal lease term would be relatively short (2-5 years) with multiple options to extend the lease. Such an arrangement allows a tenant maximum flexibility to expand to new space if needed or to remain at the leased location for a longer period of time. The following matters should be squarely addressed in any lease extension provisions:

No Changes in Any Lease Terms. Any extension of the lease should not change any non-monetary obligations. The lease should continue on precisely the same terms, except with respect to rent and similar payments.

Applicable Rental Increase. A lease that includes options to extend the term of the lease should clearly state the amount of the rent to be charged during any extended period. Increases between rental terms should not typically exceed 5%, but cannot likely be expected to increase by an increment of any less than 2%. More complicated formulas are sometimes uses but run the risk of potential disputes or unclear definitions.

Automatic Extension or Notice to Landlord. The lease should be clear in what it takes to extend the lease. Extensions may occur 'automatically' unless the tenant provides notice to landlord of its intention to not exercise the option. Alternatively, certain defined 'notice' may be required of tenant in order to extend the lease, which if not timely provided will result in the natural termination of the lease.

Updates or Redecoration of the Premises. In connection with extended lease terms, a tenant should be sure to include a periodic obligation of the landlord to update the property and provide reasonable redecoration or renovation if needed. This type of obligation might be expected to exist every ten years.

3. Non-Rent Financial Obligations

Overview

Most lease agreements include financial obligations of the tenant in addition to simple rent payments. These may include shared utilities, property taxes, common area maintenance (CAM) expenses, insurance premiums and a variety of other case-specific fees and expenses. A tenant must be sure to adhere to the following guidelines with respect to all such financial obligations:

Clarity, Clarity, Clarity: The language providing any financial obligations of the tenant must be exceedingly clear. Nothing should be left to assumption or later negotiation.
Demand Documentation: All expenses that the tenant is required to pay should be contingent upon landlord providing adequate documentation. For taxes this would include a copy of the tax bill, for utilities this would include a copy of the utility bill, for common area maintenance this would include a detailed report of incurred expenses, etc.

Clarify the Result of Non-Payment: A lease should be clear on the result of a missed payment. A tenant will prefer for any such missed payment to amount to a non-material breach of the lease. Furthermore, the lease should be clear as to the result of non-payment due to a dispute of the amount of validity of the expense. In this regard, a tenant will want to provide some right to challenge any errant or inaccurate expenses/fees.

4. Assignment and Subletting

Overview

While the initial term of the lease typically represents the anticipated needs of a commercial tenant, most business owners understand the need for flexibility. In order to avoid the unwanted position of being 'stuck' in a lease, a careful tenant will be sure to reserve and retain its ability to assign its interest in the lease or sublease the premises. Landlords often want to limit or prohibit subleasing and assignment, so this represents a key area of negotiation. A well-advised tenant will be sure to include the following provisions with respect to assignment and subleasing:

A General Right to Assign and/or Sublease. Clear and concise language should be used to grant the tenant the right to assign or sublease the premises in its sole discretion.

Limit Landlord Discretion. If a landlord requires its consent to assign/sub-lease, this language should be included which requires the landlord to use 'reasonable' discretion.

Limit Tenant Liability. In the event of an assignment or sublease, a tenant must protect its exposure to potential liability. The assignment/sublease provisions of the lease should clearly define the limits of a tenant's liability in the event that a new tenant is taking over the lease.

5. Sale of the Property During the Lease Term

Overview

Most tenants are aware of the possibility that the owner of the property will sell the property. A tenant must be sure to secure its right to lease and use the property in the event of a sale of the property. Similarly, a landlord will want to bind the tenant to its obligations in the event of a sale of the property. A landlord will additionally want to secure related rights and assurances in connection with any sale of the property. The following represents an overview of several key concepts:

Termination of Landlord's Liability: A landlord will want to terminate its lease obligations in the event that they sell the property. A tenant should be comfortable with this language and it represents a reasonable request by landlord.

Subordination and Attornment: A landlord will often include language in a lease requiring a tenant to sign a 'subordination and attornment' agreement in the event of a sale of the property. Such an agreement binds a tenant to the new owner. This provision exists solely to benefit the owner/landlord (as well and the new buyer/owner). While its existence is not entirely objectionable to a tenant, it should be understood that agreeing to continue the lease with a new landlord carries with it some potentially substantial risk.

Estoppel Certificate: A landlord will desire a tenant to execute an 'estoppel certificate' in anticipation of a sale of the property. An obligation to execute such a certificate is often included in the lease. An estoppels certificate certifies that a lease is in place, details some its terms and certifies that there has not been a breach by the landlord. The need for such a document is understandable, but a tenant should be careful to assure that only reasonable information will be requested and that a sufficient timeframe will be granted.

Transfer of Deposit: A landlord will often want to transfer any tenant security deposits to the new owner. While this transfer does not pose any problems, a tenant should be sure that the lease clearly addresses this issue and relieves the tenant of any obligations to provide a renewed security deposit.

Right of First Refusal: In some instances, a tenant may want to negotiation a right of first refusal, to purchase the property. A right of first refusal gives the tenant the right to purchase the property on the same terms as received by the landlord in a bona fide offer which they are considering accepting.

Aaron Resnick, Esq. practices in the areas of business law and real estate law. Mr. Resnick represents business as tenants in lease transactions as well as landlords and real estate investors.

This article is for informational purposes only and should not be construed as legal advice with respect to any particular lease, circumstance, tenant or owner.

Super Lawyer Magazine named Miami Attorney Aaron Resnick one of its 2011 Rising Stars.

Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The magazine names exceptional attorneys annually in all 50 states and Washington, D.C. Super Lawyers uses a rigorous selection process that begins with peer nomination. Once attorneys are nominated they are then evaluated on 12 indicators of peer recognition and professional achievement through a third-party researcher.

The 'Super Lawyers' and 'Rising Stars' lists will appear in Florida Super Lawyers magazine which will be mailed to attorneys in Florida and the ABA-accredited law school libraries. The Florida Super Lawyers supplement will appear in The Wall Street Journal (Florida distribution) on Thursday, June 16, 2011. 'Super Lawyers' and 'Rising Stars' also appear on the Web at superlawyers.com.

Mr. Resnick's law practice concentrates on business and commercial matters, real estate law and litigation and sports and entertainment law. He has successfully represented a number of clients in commercial foreclosure matters and has a company that specializes in working with lenders on distressed assets.

His current practice also includes the personal representation of a number of current and former professional athletes in the National Football League, the National Basketball League and Major League Baseball, as well as members of the arts, fashion and entertainment world.

Continue reading "Miami Attorney Aaron Resnick Name Rising Star by Super Lawyer Magazine" »

A new bill that was recently proposed by Florida lawmakers and is set to go to the Governors desk could change how developers in Florida will apply for permits to build. Supporters of the bill insist Florida has placed far to difficult requirements on contractors trying to develop the state.

House Bill 993 will change the way new developments proceed by putting new, harsher requirements on groups who challenge proposed developments. Environmentalists are worried the bill will make it more difficult to protect the environment from detrimental building. Previously, contractors were required to prove why their proposed building would not harm the proposed building area, but if the proposed bill passes that will change drastically. Instead, groups who oppose developers' plans will be required to prove how the proposed development is harmful. This change in the burden of proof could make it far easier for builders to get approval for their plans.

The proposed law could make it very difficult to challenge contractors and developers, which has local environmentalists worried about the effect on Florida's water supplies. Most are appalled by the bill. Supporters of the bill insist the bill is not about damaging the environment, but increasing building in Florida and making it easier for developers to bring much needed constructions jobs back to the State. They insist that out of state developers avoid Florida because they have grown weary of spending long periods of time locked in court battles with environmentalists who do not live any where near the proposed developments. Developers welcome the bill, saying the previous laws were set up in a way that put them at a disadvantage in court.

Critics and Florida conservationist and environmentalists see the bill as a free for all attack on the environment and already fragile water quality in the state. Local leaders who oppose the bill cite concerns over the nearly 85,000 acres located in Lee county that are at risk of being developed. In fact, a southern Florida judge is already so critical of the current water quality of the state he said he is considering asking the federal government to step in and enforce water quality laws that are already in place.

If you are concerned with the legality of this bill or any other commercial law issue, contact a Miami commercial lawyer. Commercial law covers a wide range of issues involving business processes and the buying and selling of goods. If your company is being sued or if you believe your rights have been infringed upon, a Miami commercial lawyer can tell you if you have a viable case. Most Miami commercial lawyers will offer a free consultation to help you decide if you have a case.

Links:

Builders hail late legislation change, by MARY WOZNIAK, May 6th 2011

Condos are everywhere in Miami, and with the amount of condos in Miami that are present it sometimes becomes more than necessary to enforce issues that relate to condo law. What is Condo Law? There are many aspects to condo law, but for the sake of this blog, we are going to talk about the bylaws with in a condo community. Much like a HOA or homeowners association, condo law within a community is when the tenants within the community sign a contract that governs the condominium community.

Examples of What You Might Find in a Condominium Community Contract:
One of the most popular thins that will be on a contract governing the condo community will be the areas in which all tenants and condo owners use, for example the breezeways, lounge or pool area. These areas are know and "common areas" and because it is a common area, it is important that everyone takes care of the area and abides by certain rules to maintain order within these areas. Some of the rules you might find about these areas will be things about cleanliness, behavior and noise levels.

Noise levels are yet another extremely popular item you might find on a condominium community contract. Regardless of what the city of Miami may says about what time you can make noise, you will have to obey the rules of the community as well. For instance, if the city says that a certain level of noise is acceptable until 10pm in the evening and the Condo contract states that you must not make noise after 9pm, you will need to abide by the Condo specified time.

If you are looking to set up a contract for your condo community, it is extremely wise to consult with a condo law attorney in Miami that can help you make sure that you are writing the contract correctly, they can even write it for you to assure it is done properly. A condominium lawyer in Miami can help enforce these bylaws by sending notices to the residents of the community and by taking them to court when necessary. You can also use an attorney in Miami that specializes in condo law if you are accused or are being sued by a condominium community. At the very least you can utilize the free initial consultation that most condo law attorneys in Miami offer in order to better understand condominium community laws.

Renter's Rights in Miami Florida

If you are renting a home, you may not realize that you have rights under Florida real estate laws. While these laws can vary from state to state, if you are having problems with your landlord you should contact a Miami real estate lawyer.

Basic Lease

When a tenant rents a home, a lease is constructed and is considered to be a contract of both the landlord and the tenant. The lease enforces rules of the rental, such as rent, when it is due, and how long the lease will be. Leases are written to benefit the both parties and can be written with a multitude of variables. A lease with a specified termination date is known as a tenancy for years. Unless another agreement is reached, on the last day of the lease the agreement is terminated and the tenant must vacate the home. A periodic tenancy lasts for a specified period, usually month-to-month, and there is no definite termination date. If the contract is violated based on the laws in accordance with Florida, you have the option to renew the lease at the contract end-date. A tenancy at sufferance refers to the situation where a tenant stays in the home even after the contract was terminated. Landlords who seek to evict after the lease is terminated must follow Florida law. Contact a Miami real estate lawyer if you are being wrongfully evicted.

Security Deposits
Landlords often require a security deposit in advance. The security deposit is intended to cover the costs of any damages that may occur that is not considered "normal wear and tear" and protect the landlord if the tenant does not pay rent. At the termination of the lease, the landlord must return the security deposit within 15-21 days to return the money or notify the tenant of a claim against the security deposit for damages. If the landlord makes a claim, the tenant has 15 days to object. Assuming the tenant agrees, the landlord can then use the security deposit to fix any damages needed. Any dispute on claims can be taken to court. If you think your landlord is trying to wrongfully claim your deposit, contact a Miami real estate lawyer to help you fight for your money.
Eviction

If there is a breach of the lease or the tenant refuses to pay the rent, the landlord has the right to evict the tenant. He or she cannot physically force the tenant to leave the property, but has the right to file a claim for eviction after giving notice to the tenant for eviction. If a suit is ordered and the tenant does not respond, the judge or court will rule in favor of the landlord. Both sides will be heard and action will be taken in favor of the non-breaching party.

Links:

Florida Residential Real Estate Law, April 20th 2011