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New Year, New Laws, Old Form Documents? Exhibit A: Changes in Florida’s Real Estate Contracts

Client Alert

Settling into a New Year often brings renewed energy into setting and pushing new goals of building business relationships, increasing sales, and moving Letters of Intent and negotiations into final, signed agreements.

It’s all too easy to grab a form document off the Internet (Google, anyone?), or to pull the last document in your files as a template for your next agreement.

However, changes in the law can take effect at the beginning of the calendar year, as well as mid-year or fiscal new year, and sometimes on a random date in between. 

Your awareness – or lack of awareness – in changes in the law can mean the difference between keeping you and your business operating within the law or putting you at great financial and legal risk for not complying with the law. It can also result in financial and time savings or additional burden in time and costs.

Major Changes to Florida’s Form Contracts: FR/BAR “As Is” and Residential Contracts

Florida’s real estate market has been among the hottest markets to buy, sell, lease, and otherwise invest.  Much of the state’s real estate market is driven by the residential market, namely the sale and purchase of single, family homes.  These buyers and sellers are not always individuals. They also include individuals and investment companies, some based locally, others from out of state or out-of-country, who may not be familiar with Florida-specific laws and customs.

In Florida, there are form contracts you easily find online. However, the ones that are generally accepted form contracts, those widely used and accepted by professionals within the industry, are the purchase and sale agreements for residential real estate contracts, issued and approved by the joint committee of Florida Realtors and The Florida Bar, including the (i) FR/BAR Residential Contract for Sale and Purchase and the (ii) FR/BAR “As Is” Residential Contract for Sale and Purchase.

These FR/BAR contracts are not typically updated on a yearly basis, as they take significant collaboration between both professional organizations. The most recent changes took effect as of November 1, 2021, among them, a few highlights summarized:

“Loan Approval” and “Appraisal”

The definitions of “Loan Approval” and “Appraisal” have been expanded.

If the financing contingency box is checked, then in addition to obtaining approval for financing, the Buyer’s lender must also receive a satisfactory appraisal (or alternative valuation of the Property) prior to the expiration of the Loan Approval Period. This revision was made to expedite the receipt of the appraisal, as the prior form contract allowed the lender’s appraisal to come in right before Closing, and a deal could fall apart right before the Closing Day. Under the new revision, if the appraisal does not meet lender approval within the Loan Approval Period, the parties could terminate sooner than previously allowed and the property could return to the market sooner for other potential buyers.

Delivery Notice Methods

In addition to providing notice by mail or personal delivery, notices by fax or email are allowed. However, other electronic media delivery previously allowed is prohibited, so no texts or social media messages.

Occupancy Clause

The occupancy clause has expanded to include disclosure of existing seasonal or short-term vacation rentals and future tenancies.

FOREIGN INVESTMENT IN REAL PROPERTY TAX ACT (“FIRPTA”)

FIRTPA withholding and reporting costs are now explicitly designated as a Seller.

Time Calculations

Calendar days are now based on the Property’s location, and if a date or time period ends on a Saturday or Sunday, or a day that is a national legal public holiday (as defined by U.S.C. Sec. 6103(a)), or a day on which a national legal public holiday is observed because it fell on a weekend, that date or time period extends to the next calendar date which is not a Saturday, Sunday, national legal public holiday, or a day in which a national legal public holiday is observed.

Force Majeure (Pandemic now included)

The definition of “Force Majeure” expanded under the new form contracts to include “governmental actions and mandates, government shutdowns, epidemics or pandemics.” This section allows

Understanding Changes in the Law, Changes in the Forms

The foregoing summaries are just some of the changes to the new form Florida “As Is” and Residential Purchase and Sale Contracts. There are many other changes that were added, deleted, or modified. 

Although you may be able to find one of the new forms online, very likely the older forms will pop up. Further, if the forms do not originate directly from the Florida Realtors or The Florida Bar or a licensed Realtor, Broker, or Attorney, you may not know if you have a form contract that is fully updated or if the correct Riders are being properly used.   

It is worth paying the extra money for a professional to work with you in preparing or responding to a contract, even a form contract that appears to be blessed by professional organizations.  The cost of “free” and fast forms can amount to an expensive and long process of fixing versus hiring a professional to prepare an agreement that’s specific, clear, and current or hiring an attorney to litigate for or against a not-so-current or compliant contract.

To learn more about the recent changes in Florida’s real estate contracts or other areas of residential or commercial real estate, please contact BMD Attorney Christine M. Berk (cmberk@bmdpl.com) – (407) 214-8395.


Valley National Bank/Trulieve Loan: A Big Step Out of the Shadows

In a late December press release, Trulieve announced that it had secured a $71.5 million commercial bank loan. In addition to the amount of the loan, which may be the largest commercial bank loan to date to a cannabis company, the release prominently identified Valley Bank and featured both a quote from Valley’s Senior Vice President, John Myers, and a description of the Bank’s service platform and commitment to the cannabis industry.

The End of Non-Competes? The Impact It Will Have on the Healthcare Industry

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, will ban employers from entering into non-compete clauses with workers (the “Rule”), and the Rule would void existing non-compete agreements. In their Notice, the FTC stated that if the Rule were to go into effect, they estimate the overall earnings of employees in the United States could increase by $250 billion to $296 billion per year. The Rule would also require employers to rescind non-competes that they had already entered into with their workers. For purposes of the Rule, the FTC has defined “worker” to also include any employees, interns, volunteers, and contractors.”

2022 Healthcare Recap and 2023 Healthcare Check-Up

As the country begins to return to a new “normal” following the COVID-19 pandemic, there are many healthcare rules changing on both the federal and state levels as a result. Thus, it is important for healthcare providers and their employers to be aware of these changing rules, and any implications they may have on their practice. Look back on healthcare in 2022 and find a checklist for 2023.

Direct Support Professional Retention Payments

On December 15, the Ohio Senate and House passed House Bill 45, which authorizes the Department of Developmental Disabilities (DODD), in conjunction with the county boards of developmental disabilities, to launch their initiative to issue retention payments to Direct Support Professionals (DSPs). These retention payments will be distributed quarterly to participating home and community-based waiver providers to address the workforce crisis in the direct provider sector. Governor DeWine needs to sign the Bill to begin the payments, but he is expected to do so by the end of 2022.

Real Estate Investors Position for 2023 Opportunities

Real estate investors weathered another year in a post-pandemic world, with the year closing with yet another interest rate increase coupled with both uncertainty and heightened interest carrying into 2023. Just last Wednesday, the Federal Reserve raised its benchmark interest rate 0.50 percentage points, shifting the target range to 4.25% to 4.50%. The new level is the highest the fed funds rate has been since December 2007 and marks the seventh rate hike this year. So what does this mean to investors, brokers, lenders, and others in the real estate world? Read a few perspectives below from stakeholders familiar with our BMD clients and the markets in which they do business.