Lady Bird Deed

Florida “Lady Bird” Deed

Owners of Florida real estate have always sought ways of transferring title their home or other real property at death without the cost and delay of probate. While inter vivos trusts are popular, such estate planning schemes are usually too expensive for persons of modest means. Recent legislative enactments have also imposed burdens on trusts that create additional costs and delays at the death of the grantor.

Another tool employed by many Floridians to avoid probate is a lifetime conveyance of their property to their ultimate beneficiary (legally called “remainderman”), but reserving the use and possession of the property for the remainder of the owner’s life (legally called a “life estate”). On the surface this method of transfer is deceptively simple, yet there can be serious unintended consequences of such an outright transfer. Once the deed is signed, sealed and delivered it becomes irrevocable. If the owner needs to mortgage or even sell the property, it cannot be done without the remainderman’s consent. Also, the remainderman’s creditors can attach his or her interest in the property – definitely an unwanted situation.

Florida Enhanced Life Estate Deed

To avoid the unintended and unwanted consequences of an absolute conveyance of the owner’s property, Florida legal practitioners have begun to use the so-called “Lady Bird Deed” used by the late President Lyndon Johnson to convey his property to Lady Bird prior to his death. The correct name of this instrument is the Enhanced Life Estate Deed.

The Enhanced Life Estate Deed adds specific language to the deed that reserves the right of the owner to mortgage or sell the property during the owner’s lifetime and use the proceeds for the owner’s own benefit, free and clear of the remainderman. Language in the deed stating that the owner reserves “for a life estate, without any liability for waste, and with full power and authority in the life tenant to sell, convey, mortgage, lease, or otherwise manage and dispose of the property described herein, in fee simple, with or without joinder of the remainderman, and with full power and authority to retain any and all proceeds generated thereby” serves to create this “enhanced” life estate. This added flexibility satisfies the concerns of the owner over the ability to sell or mortgage the property should an unanticipated need arise or should the owner simply desire to avoid a transfer of the property to the remainderman for any reason that subsequently arises.

Of course, as with any evolving legal concept there are still questions with the Enhanced Life Estate Deed, such as the legal rights of the remainderman’s creditors should the life tenant decide to sell or mortgage the property after the creditor obtains a judgment against the remainderman. These issues will have to be decided on a case-by-case basis by the Florida courts, but for now the Florida Enhanced Life Estate Deed has become an attractive way to pass title to real estate and avoid probate.

Constructive Possession

Constructive Possession

The police arrested me because I was sitting closest to the pot, and it wasn’t even mine! Can they do that?

It happens all the time. A police officer pulls over a car for a traffic violation. The officer might see some contraband (drugs, etc.) in plain sight. Or the officer might request permission to search the car, and the driver is so scared that he gives permission, and then the police officer finds some contraband (drugs, etc.) in the glove compartment, under the seat, etc.

Then the police officer asks who is the owner of the contraband (drugs, etc.). No one answers. Then the police officer arrested the person who was sitting closest to the contraband (drugs, etc.), or sometimes the police officer will arrest the owner or the driver of the vehicle.

So, the question is: Is that right? Is that fair? More importantly, will that arrest “hold up” in court. The answer is complicated. Florida has a legal doctrine known as the Doctrine of Joint Constructive Possession (no pun intended). This doctrine determines when the police can make a valid arrest for possession of contraband (drugs, etc.) in a situation where multiple persons are close to the contraband (drugs, etc.).

The Doctrine of Joint Constructive Possession can apply to any kind of contraband. It can apply to an arrest for possession of drugs, such as marijuana (also known as “pot” or “weed”), cocaine, or any other illegal drugs. Of course it could apply to an arrest for possession of other contraband as well, such a minor in possession of alcohol. In addition, the doctrine can apply to a person in possession of a medication without a prescription that is also a controlled substance, such as Xanax (Alprazolam), or some other prescription medication that is also a controlled substance.

A skilled and experienced criminal defense attorney can raise this issue in Court and put the burden on the Office of the State Attorney (the prosecutor) to justify the arrest. If the State cannot justify the arrest, as required by the Doctrine of Joint Constructive Possession, then the Court will dismiss the charge. In short, this doctrine is a powerful tool in the hands a skilled and experienced criminal defense attorney.

As with all legal issues, every case is different, and legal analysis is required to determine if the doctrine of Joint Constructive Possession applies to a particular case. If you or a loved one has been arrested, it is important to hire a skilled and experienced criminal defense attorney to protect your rights as soon as possible. The faster you hire an attorney, the faster you have someone on your side looking out for you and protecting your rights.
September 2018
July 2013
February 2013