Real Property Law

We all have our favorite legal show—whether it’s Law and Order, Judge Joe Brown, or my personal favorite, the Three Stooges classic “Disorder in the Court”—and just about everyone knows (or thinks they know) a little about how the legal system works.  In some of those shows, the people arguing the cases aren’t lawyers; they’re just regular people arguing their own cases in front of a judge without the help of an attorney.  What these people have to do usually isn’t very hard; in fact, you’ve probably even said to yourself, “I could do a better job than he could!”  Maybe you’ve even considered representing yourself in a legal issue—after all, who needs a high-priced attorney when you can go it alone?

Let’s be clear, though: watching Judge Judy once a week or having “TiVoed” a few episodes of Boston Legal does not make you qualified to argue your case in front of a judge or jury—the real-life legal system is not like what you see on television.  There are many factors to take into consideration before deciding to make the (potentially life-altering) decision to represent oneself in court.  In this article and those that follow, I’ll give some tips and point out some potential problems to anyone considering acting as their own lawyer in handling a legal issue.

A person who represents himself or herself in a court of law or another legal capacity is said to be acting pro se (pronounced “pro say”).  Pro se is a Latin term—and get used to Latin if you decide to represent yourself, since many of the legal terms still in use today derive from Latin—defined as “for oneself; on one’s own behalf; without a lawyer” (see Black’s Law Dictionary, 8^th Ed., p. 1258).  People choose to act pro se in legal proceedings for a variety of reasons: they may wish to avoid the expense of hiring an attorney, the issues involved in the case may be simple enough to handle on their own, they may want to control their own case directly, and so on.

There are certainly situations in which it may make sense to act as your own attorney, such as certain legal matters that may be simple enough to handle on your own.  In Small Claims courts, for example, the amounts being disputed are frequently fairly small, while hiring an attorney can cost hundreds of dollars per hour!  If you’ve been sued for a small amount (a few hundred dollars, for example) it may not make sense to pay an attorney—your costs are going to outweigh any potential benefit.  On the other hand, remember that in the legal world there is no such thing as a “one size fits all” approach.  For example, if you’re only being sued for a few hundred dollars but losing the case means that you’ll miss a house payment or a credit card payment, choosing to represent yourself when you have other legal options may not be the best idea.  Remember that even seemingly simple situations can have far-reaching consequences.

Although I’m a bit biased, being an attorney myself and getting to see the advantages and disadvantages of hiring a lawyer from an up-close perspective, I’m a firm believer that at least in situations where a legal action (such as a lawsuit or criminal charge) is pending or may be filed in the future, it is wise to hire an attorney or at the very least to talk with one to get an opinion on whether legal services are needed.

Don’t EVER make the decision to represent yourself without carefully considering the potential outcome of that decision.  If you choose to represent yourself, the odds are that no matter how good your legal position may be (or how good you think it may be), you will be at a serious disadvantage in most situations.  Opposing parties who have hired lawyers will have access to trained professionals who understand the complex and challenging court system, who know how to try cases, who understand judges and juries, and who have access to research and resources that you may not even be aware of.  Even worse, legal professionals—whether they are opposing attorneys, court personnel, or even judges—will assume that you don’t have an understanding of “the way things work.”  They may view you as a burden on their time and energy and anticipate that you will struggle with doing things the “right way,” even if those assumptions are wrong.  While you technically have access to an equal playing field when it comes to representing yourself in a court of law, the reality is that the legal system tends to favor parties who hire attorneys.  You will need to be prepared to face these hurdles if you are to be successful in representing yourself.

My goal in this article and those that follow is not to provide you with a perfect plan in which you are guaranteed success if you represent yourself—there are no guarantees in the law. Every person’s situation is different, and every legal decision is the result of a lot of different factors; what works for one person might not be effective in another person’s case.  So, instead of looking for a foolproof strategy, please use this information as a resource to learn some steps you’ll need to take if you decide to act as your own lawyer.

Remember, no single approach to resolving a legal action is foolproof.  While you can’t guarantee success or even a good likelihood of success, you can improve your chances by using common sense and being well prepared.  Representing yourself in a legal matter is an intimidating thing to do, so you should only make the decision to do so if you’ve carefully considered your options and are prepared for the results.  Consider talking to an attorney to see whether hiring one will even be necessary; many attorneys will offer an initial consultation for this purpose without charging a fee.

Although the articles in this series will be written with those in mind who are actively involved in a legal matter, the concepts they will discuss can be applied to almost any aspect of the law.  If you’ve made it this far and you feel that representing yourself is the best course of action, hopefully the rest of the articles in this series can provide some useful guidance. 

Finally, and most importantly, remember that no article can provide a substitute for legal advice specifically tailored to your situation from a licensed attorney.  Consult a lawyer if you have any questions about the legal issues you are facing.

Adam is an associate attorney at Rohrbachers Cron Manahan Trimble & Zimmerman Co., L.P.A.  This article is intended to be the first in a multi-part series providing practical tips for pro se parties representing themselves in a legal action.

Since the recession began in 2008, The City of Toledo has experienced a level of suspected arson fires that are unprecedented in recent memory.  The prolonged recession has created a climate where “desperate people are doing desperate things.”  Homes are being destroyed, lives are being lost, and the risks of injury to occupants and firefighters are ever present.  The summer of 2011 is the second summer in a row that the city has had a significant increase the number of fires labeled “suspicious” by the Toledo Fire Department. 

There are a number of reasons why arson fires are set (i.e.  domestic issues, revenge, and thrill seeking), however, during these difficult economic times, setting fires for the purpose of procuring insurance benefits is the primary motivation.  While arson fires have been set in various areas of Toledo’s central city, the fires are primarily in areas of depressed property valuations. 

In order to establish that an individual intentionally set a fire, in ether a civil or criminal case, the prosecution or the insurance company must prove that someone had the opportunity and the means to have set the fire.  While not necessary as a matter of law, it is also important that the individual have some motivation to have set the fire.  Financial motivation (i.e.  the collection of insurance proceeds) is a strong indicator. 

In making a determination of whether the individual had the opportunity and the means to set an incendiary fire, an inspection of the scene by a certified fire investigator, following proper guidelines established by the Nation Fire Protection Association (NFPA), is critical in making that determination.  As City of Toledo Deputy Fire Chief Phil Cervantes told the Toledo (Ohio) Blade newspaper, “I’m sure there are a lot more out there that are arsons that we can’t determine,” he said.  “I just don’t have what I need to definitively say it’s an arson fire.  I know it is from experience.  I know what I’m looking at or what I’m reading is an arson fire, but if the house fell down or we had to tear it down, we’ve got to list it as ‘undetermined’.

Toledo Firefighters order a structure to be torn down when they believe the structure poses a risk to public safety and/or to the safety of firefighters.  This has become a source of frustration for insurance companies who are called; sometimes days after the fact, and must ask an expert to make a determination of the origin and cause of the fire and the security of the dwelling after the fire is extinguished.  Often, if the arsonist has properly performed his criminal act, the structure is an inferno by the time firefighters arrive and it is unstable and eventually torn down in the interest of safety.  The scene, as a result, is compromised, and often, critical evidence is lost.  While both the Toledo Fire Department and the insurance carrier have a stake in determining whether an incendiary fire occurred, many times, efforts to balance the interests of safety against making a determination of the origin and cause of the fire have been unsuccessful.  The Toledo Fire Department has erred on the side of safety on every occasion.  While public safety is their primary goal, an unintended result is that the suspected arsonist is often unable to be prosecuted or to have his insurance claim properly evaluated because the scene has been destroyed.  This situation makes it difficult for an expert to make an origin and cause determination.

Let’s hope that a solution can be found and a balance struck between these two oftentimes competing yet laudable goals. 

Having been licensed to practice law in Florida since 1999 and having worked with Ohio residents who own real estate in Florida, usually when administering an estate; I have been amazed at how many Ohio residents own real estate in the state of Florida.  Many do so because after a short two hour flight you can be in the tropics.  A great break from the harsh Ohio winters.  Others want to spend their retirement years in a place that is warm, income tax free and estate tax free.  Ohio is one of 17 states that still has an estate tax; and now, real estate is relatively cheap in Florida.

Florida has a unique homestead law.  Florida’s homestead law is found in its constitution and was first enacted in 1843.  Because it is in the constitution the state legislature can not change it unless by a constitutional amendment which requires a favorable vote of the citizenry of Florida. It affects three different aspects of real estate ownership in Florida.

• Exemption from creditor’s claims
• Restrictions on alienation
• Tax exemptions and benefits

To qualify for the homestead exemption, the real estate must be owned by a natural person who claims the real estate as their primary residence.  How you own the property or what type of property ownership is usually not an issue.  For example ownership can be in a trust, life estate, leasehold interest, mobile home, condominium, cooperative or boat, but does not apply to any portion of real estate used for a commercial business. Homestead is established by submitting a homestead application (Florida Department of Revenue Form DR-501) to the appropriate Property Appraiser’s office on or before March 1^st of the year for which the exemption is sought.

From a local tax perspective a person claiming homestead has the first $50,000 deducted from the assessed value of a primary residence before taxes are assessed.

Creditors, other than the taxing authority for assessed taxes and the lender with a mortgage on the property, can not force the sale of the real estate or lien the property.  This applies to qualified homestead property for up to one-half acre of contiguous land in a municipality and 160 acres outside a municipality.  Bankruptcy law exemptions and Federal tax liens supersede Florida’s law.

In a like manner, creditors of a decedent can also be forestalled from claiming a decedent’s qualified Homestead, especially if there is a surviving spouse and minor children.

Florida’s favorable homestead laws are certainly one item to consider if you are considering changing your primary residence to Florida.