DSK Law for LegalShield Associates

01/03/2023

https://fb.watch/hPUJm487aw/

05/10/2022

https://vimeo.com/680625939/10287db4a4

This is "LS Provider Network Overview_Final" by LegalShield on Vimeo, the home for high quality videos and the people who love them.

12/31/2020

11/11/2020

Thank you for your service!

09/29/2020

Is My Non-Compete Agreement Enforceable In Florida?

To generally be enforceable under Florida law, a non-compete agreement must meet the following three requirements. First, the agreement must be in writing and signed by the individual sought to be bound by it. Second, the agreement must set forth restrictions that are reasonable in scope—i.e., time, geographic area, and line of business. Finally, the non-compete agreement must be for the purpose of protecting one or more of a company’s “legitimate business interests.” A non-compete agreement that broadly prohibits competition per se is a violation of public policy and thus void. A strong non-compete agreement, therefore, is narrowly tailored to address these legal requirements.

Outside of making sure the agreement is in writing and signed by the person to be bound, the most important consideration to be enforceable is whether the agreement is actually for the purpose of protecting a legitimate business interest. This is because a non-compete agreement that is unreasonable in scope (time, area, or line of business) may be “blue penciled” by a court in order to be reasonable in those respects and enforced against the party that signed it.

As provided by Section 542.335, Florida Statutes, “legitimate business interests” include, without limitation: (1) trade secrets; (2) valuable or confidential information that is not technically a trade secret; (3) substantial relationships with specific clients (whether existing or prospective); (4) goodwill associated with an ongoing business reputation, trademark, physical location, marketing region, or other business practice; and (5) specialized training. Additionally, the Florida Supreme Court has ruled that business referral sources may also be deemed a legitimate business interest. To be effective in this regard, the employer should ensure that the non-compete agreement is tailored to address the specific aspects of the business that give it a competitive advantage, as those matters will often be deemed legitimate business interests.

A final consideration is for the agreement to set forth a restriction that is reasonable in time, area, and line of business. Section 542.335, Florida Statutes, addresses the time periods that are presumed reasonable in various contexts. For example, as to a former employee or independent contractor not associated with the sale of a business, a restriction against competition of six months or less is presumed reasonable and a restriction of more than two years is presumed unreasonable. Upon sufficient evidence, however, courts have found a restriction longer than two years to be reasonable under the particular circumstances.

Like the legitimate-business-interest inquiry, whether the geographic area or line of business restrictions are reasonable is dependent on the specific facts of the situation. For example, a company that develops software specifically for flight control systems should not be able to enforce a broad restriction prohibiting an employee from working for any software development company. Rather, to be enforceable, the restriction should be narrowly tailored to prohibit working for a business that competes in the flight control system marketplace. Similarly, a construction equipment sales representative with a Florida sales territory and Florida-based clients should not be prohibited from taking a similar job in California selling strictly to California companies. Instead, a more enforceable restriction would be to prohibit the sales representative from taking a job that specifically competes in the same Florida territory.

These are just a few of the issues to account for when drafting or seeking to enforce a non-compete agreement in Florida. And as with most legal matters, resolving such issues in order to obtain a successful outcome is generally a fact dependent inquiry. As such, if you need assistance drafting or resolving a dispute concerning a non-compete or similar type of agreement, it is highly recommended that you consult an experienced commercial attorney.

08/24/2020

Ladybird deeds are used to pass ownership of real estate to someone when the owner dies without having to go through probate court. Parents often use them to pass their homestead to their children.

Here is a typical example of how a ladybird deed is used. Mom and Dad own their homestead and they want to pass it to their children after both Mom and Dad are deceased. Mom and Dad have a ladybird deed prepared by a qualified attorney. The deed says that when the last of them dies, the property will be owned by their children, who must be named in the deed. The deed gets signed and then recorded in the land records in the county where the homestead is located. After both Mom and Dad have died, one of the children can record death certificates for Mom and Dad in the land records. Once that is done, the homestead is legally owned by the children named in the deed. Nothing else needs to be done.

If a ladybird is not used, when the last of Mom and Dad dies, usually a probate court case must be opened to transfer ownership of the homestead even if there is a Will that says the children inherit the homestead. A Will by itself does not transfer ownership until a probate court issues an order to that effect. The probate process can be expensive and time consuming depending on the circumstances. Sometimes, even if a ladybird deed is used, a probate case may be necessary for other reasons.

A ladybird deed can be tailored to the particular circumstances of the owner of property. One can be used after one of the parents is deceased so that if Dad has died, Mom can sign a ladybird deed that leaves the homestead to her children. Property does not have to be left to the children nor does it have to be left to all of the children. It can be left to grandchildren, nieces, nephews, siblings, parents and just about anyone.

What happens if a ladybird deed has been recorded and later Mom and Dad decide to change who gets the property? Or what if Mom and Dad decide to sell or mortgage the property? Most Florida real estate lawyers agree that a properly written ladybird deed will let Mom and Dad do whatever they want without the consent of the person who is named in the ladybird deed. However, there is no specific Florida law one way or the other. There are other issues that might arise when using a ladybird deed so consult with a qualified real estate attorney before deciding whether to use one.

Ladybird deeds have been used for decades in Florida and to avoid probate of real property, most typically a homestead, but they may not be appropriate in every situation.

08/21/2020

August is National Make A Will Month!

Creating this document is one of the most important things you can do for yourself and your family before you die. It tells everyone who is to receive your estate, including who you wish to receive certain belongings and who will care for your minor children.

Listen to LegalShield Chief Legal Officer, Keri Norris, explain the importance of having a Will."

August is National Make a Will Month. Have you prepared your Will yet? Creating this document is one of the most important things you can do for yourself and your family before you die. It tells everyone who is to receive your estate, including who you wish to receive certain belongings and who will...

07/24/2020

Due to storms and hurricanes that have historically impacted Florida, DSK Law has had the opportunity to assist many individuals and small businesses with legal issues related to the aftereffects of storm damage. In past consultations with our clients, we have identified certain frequently asked questions or concerns as indicated below which may be helpful to you this hurricane season.

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Question: I live in a condominium or homeowners’ association property. If it sustains storm damage to common-area facilities (i.e., pool, gym, playground, parking areas) due to a storm or hurricane, can I withhold payment of my association dues until the association repairs these common areas while I cannot use these facilities?

Answer: No. While the condominium or homeowner’s association is certainly obligated to arrange for the repairs of these common areas, you and every other homeowner are jointly the members of this association, and repair issues should be pursued with the association itself. Moreover, the means and/or budgeting for these repairs may require the input of the homeowners collectively. Any unexplained failure to engage or address repairs must be pursued through the homeowners’ association itself in accordance with its rules, by-laws, and voting rights. Failing even those remedies, a lawsuit may be necessary against the homeowners’ association to legally enforce these remedies.

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Question: Is there a law requiring my mortgage company to excuse my monthly payments if I am not able to pay my mortgage payments due to a storm or hurricane?

Answer: There is no general law requiring mortgage payments to be excused due to hardship from storms or hurricanes. The mortgage company may generally identify a default, and, subject to current orders due to COVID-19, may pursue mortgage foreclosure as allowed by law. However, in the event of a hurricane or storm, you should contact your mortgage company or loan servicer to inquire whether or not it is offering mortgage relief, what programs are being offered, whether or not you qualify, and how to apply.

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Question: Who is responsible for damages caused by a falling tree and for removal of the tree as a result of the storms or hurricanes?

Answer: If the damages were caused by a tree falling as a result of a storm or hurricane (i.e., an act of God), and there was no prior ability to anticipate or knowledge that the tree was a hazard and likely to fall, the damages are likely the responsibility of the owner of the damaged property. Additionally, the removal of the fallen tree will in most instances be the responsibility of property owner upon whose property the tree landed, including a neighbor if the tree fell across the property boundary. As to whether the parties’ liability insurance should pay the cost will depend on their individual policies. Generally, if covered, there will usually be a high deductible on damages resulting from high winds and acts of nature.

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Question: If I suffer property damage from a storm or hurricane and my insurance company refuses to approve my claim is my only option to file a lawsuit?

Answer: No. You can request mediation with your Insurer through a program set up through the State of Florida Department of Financial Services by using the helpful link below. If you elect to avail yourself of these services, we urge you to contact us to discuss the process and the information you may need to have available to present to the mediator.

http://www.myfloridacfo.com/Division/Consumers/Mediation/

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Question: What can a tenant do if a rental unit suffers damage from a storm or hurricane and landlord has not repaired the damage?

Answer: Subject to the terms of any written lease, a tenant typically must mail or hand deliver a 7-day notice to the landlord to fix or repair the damages, unless the repairs are the tenant’s obligation in the lease. If the landlord makes a reasonable effort to cure the violation within 7 days, or if the noncompliance is beyond the landlord’s control, the tenant cannot terminate the lease unless the unit is uninhabitable. However, the tenant may be able, after providing the notice, to withhold all the rent if the premises are uninhabitable, or if the tenant still lives in the premises, an amount in proportion to the loss of rental value caused by the noncompliance. Remember, a tenant does not have any of these rights until the required notice to fix or repair is mailed or hand delivered to the landlord.

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Question: If I am renting an apartment and my personal property is damaged due to a hurricane or storm, what recourse do I have?

Answer: Hopefully, you have renter’s insurance. If so, you should contact your insurance company and report your loss. If not, you should see if the landlord’s policy will cover your losses.

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Question: Am I as a tenant liable for damage caused by a hurricane to rental property?

Answer: We will need to review your lease, however, generally, the landlord will probably be responsible unless you were negligent in some aspect that resulted in the damage.

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Question: My insurance company sent me a check payable to my name and that of the mortgage company. Why must the mortgage company endorse the check?

Answer: As a general rule insurance companies issue this type of check because as required by the mortgage documents, your mortgage company is an additional insured on the insurance policy. The mortgage company is includes this requirement as a condition to loan because it has a lien on your property in the amount of the outstanding mortgage and therefore, has a vested interest in seeing that all the necessary repairs are completed in a workmanlike manner. Therefore, most mortgage companies have the right to require a homeowner to endorse the insurance check and deliver the funds to the mortgage company to be disbursed by the company periodically as the repairs are made. The mortgage company also may have the right to inspect the repairs before it releases the money. Depending on the extent of the damage and the amount of equity that the owner has in the property, the mortgage company may not require that the funds be held by it and may endorse the check and provide it to the homeowner. It is suggested that you contact your mortgage company to discuss the specific guidelines.



Please note that this information is provided for educational and informational purposes only, and it is based on the present state of the law without application to specific facts which may exist in a particular case. As such, if you have any issue following a storm then we encourage you to seek the advice of an attorney.