Dealmakers not Dealbreakers with Kathryn Huynh Real Estate Lawyer

Welcome back to The Pauline Chilton Show, where we explore the best of Tampa's real estate, lifestyle, and everything in between. In today’s episode, we have a special guest, Kathryn Huynh, an attorney with Berlin, Patten, Ebling, who practices primarily in the areas of commercial and residential real property transactions, including, without limitation, developer representation, landlord and tenant representation, and purchaser and seller representation. 

Transcript

Pauline Chilton: 0:00

Welcome back to the Pauline Chilton Show, where we explore the best of Tampa's real estate lifestyle and everything in between. In today's episode, we have a special guest, Kathryn Huyhn, an attorney with Berlin Patten Ebling, who practices primarily in the areas of commercial and residential real property transactions, including but not limited to developer representation, landlord and tenant representation, and purchaser and seller representation. But I don't want to do all the talking here. So first things first, Kathryn, please tell us about the firm and your experience in real estate law.

Kathryn Huyhn: 0:37

Thank you, Pauline, for having me on your show. So a little bit about Berlin Patten Ebling, we are a full service law firm. Our primary area of practice has been and always will be, real estate and title services, but we also have commercial litigation, estate planning, and land use. And those are other areas of law that really help support our real estate department as well, and we have six offices, Tampa, St. Petersburg, Lakewood Ranch, Sarasota, Venice, and Bonita Springs. We handle closings at all of the offices, and the great thing about this firm is that we have about 25 attorneys and we all really work together amongst the offices to help support our clients and all of their needs.

Pauline Chilton: 1:21

That's great Kathryn so now I'd like you to tell us more about yourself so the audience can get to know you better. What kinds of things do you like to do in your free time? What would you like to share with our audience

Kathryn Huyhn: 1:32

today? Sure, absolutely. So I grew up here in Tampa Bay. I went to Plant High School, so this is where my family is. This is where my friends are. I went to Plant High School, then went to the University of Florida for my undergrad, master's and law degree. So I'm a Triple Gator. Have been a real estate attorney for about five years now doing residential and commercial real estate, and I love real estate. It's such an exciting area of law with all different areas that you can practice in real estate is really, truly what I consider a happy area of law. You know, the buyer seller is either getting land or money at the end of the day and, and it's not as litigious as other areas of

Pauline Chilton: 2:13

law. And now that we've gotten to know you a bit, I'd love to hear more about your expertise in real estate law and your thoughts on some related questions I have. The first question that I have is, What are some common legal issues that can arise during a real estate transaction? Yeah,

Kathryn Huyhn: 2:32

absolutely. So whenever a transaction comes to us, we have to represent one party or the other. So we usually represent either the buyer or a seller in the transaction. We review the contract, title issues, surveys on their behalf to make sure that their interests are protected. So some common legal issues that we run into are title issues, survey issues, deposit disputes, and issues that happen on the day of closing. So any number of things can arise, but at the end of the day, we're always making sure that whoever our client is, that their interests are protected and we help try to facilitate the transaction. So we like to consider ourselves deal makers instead of deal breakers. I like

Pauline Chilton: 3:15

to hear that you are deal makers and not deal breakers. Another question is, can you explain the role of a real estate attorney in the buying or selling process? Yes. So

Kathryn Huyhn: 3:28

at our firm, like I said, we usually represent the buyer or seller. Sometimes that seller can be a developer or an investor, and in that, those instances we will represent them and their interest in the transaction. It starts from either negotiating and preparing the purchase and sale contract to obtaining title, reviewing the title commitment for either the buyer or seller. If we're representing the buyer, we will object to any potential title issues that we see. If we represent the seller, we will help the seller in clearing any title issues that arise. Again, similar with survey issues. If we're representing the buyer, we will object to any encroachments that are shown on that survey and help the buyer obtain clear title and a clear survey at closing. And then at the end of the day, we will prepare any closing documents or anything that may be extraneous to a closing process that can help facilitate that transaction between the buyer and the seller.

Pauline Chilton: 4:28

It's great that you brought up the documents because during a real estate transaction, there are a number of legal documents involved, and of course would need an attorney to help with that. So can you go over what some of the legal documents are that are typically involved in a real estate transaction? Yes,

Kathryn Huyhn: 4:48

absolutely. So the first document is your purchase contract. So often in the state of Florida, if we're handling residential real estate, there are form contracts that can be used. There's the "As Is" or standard contract that was created by the Florida Bar and the Florida Association of Realtors. However, if we're dealing with a commercial transaction, that's where the contracts tend to be a little bit more involved, a little bit more specific to the transaction, where the buyer and the seller will negotiate the terms. The next document is a deed. So the deed is the instrument of conveyance that transfers title to the property from the seller to the buyer at closing. That's a legal document, and whenever we're preparing the deed, we want to make sure that the vesting is correct. How does the buyer want to take ownership of the property? Is it them individually? Are they married? And do they have any plans for what happens to the the property if they were to pass? Also, if they have a trust, Do they wanna take title in their trust or an LLC? Our firm, again, provides full services, so if they are in need of a trust, we have an estate planning department that can assist with that aspect before we close the transaction. Also, we can help, prepare the LLC documentations for filing the estate if they plan on creating an L L C. Also, there are the note and mortgages, so if the buyer's intending on getting a loan, some of the legal documents involved with the loan documents, is the note, which is the document that is the I O U from the lender that says, buyer agrees to pay back the loan to the lender and the mortgage, which encumber the property and where the property becomes the collateral for the loan that's given by the lender and allows the lender to foreclose if the borrower stops making payments on the loan. So those are just some examples. Another one, pre-closing and post-closing occupancy agreements. That's one that we've seen become very popular in the most recent market. A post-closing occupancy agreement allows the seller to stay on the property after closing and can be a really helpful negotiating tool whenever buyers are trying to purchase the property. But the seller maybe doesn't have everything situated if they haven't gone under contract for another property yet, or they're building a new property and it's not ready for move-in. It allows them to stay on the property and doesn't encumber everything like a lease would. Okay.

Pauline Chilton: 7:16

So sometimes a buyer or seller may not know exactly what to look for in an attorney, or they might have some things they need to think about as they're thinking about whether or not they need to choose an attorney. So can you go into that? What should a buyer or seller look for when choosing a real estate attorney to work

Kathryn Huyhn: 7:34

with? Great question. So in the state of Florida, if you are licensed by the Florida Bar, you can practice real estate anywhere in the state. So you're not limited, but if you are trying to buy or sell property in a certain region, it would be important to get an attorney that is familiar with it, who is familiar with the local laws, regulations, and ordinances. For instance, if someone is looking to cut down a tree, you know, it would be important to have an attorney who's familiar with what those tree laws are in that state, or if they're trying to do short-term rentals and use the property for short-term rentals. Each local county or city may have their own separate restrictions for that. So it would be helpful to have an attorney that has connections to the local government, their city councils and boards. Another thing would be to have an attorney who is familiar with changing laws, especially for instance, in the state of Florida. The condo legislation has been updated fairly often ever since what happened in Surfside two years ago. If you're looking to sell or buy condo property, I would recommend reaching out to an attorney who has experience and familiarity with what's happening with the condo laws today. That's really

Pauline Chilton: 8:50

good. Can you provide some examples of when a real estate attorney might be needed during the transaction process?

Kathryn Huyhn: 8:58

Sure, absolutely. As an attorney, I always recommend bringing the attorney on as early in the process as possible. So if, for instance, it's a new construction and the buyer is looking to buy property directly from a builder, I recommend having an attorney review that purchase contract before the buyer signs it, because the moment the buyer signs, usually their initial deposit is due, which is approximately about 10% of that purchase price. It's important for the buyer to know when they would, if they would be able to at all, get their deposit back or when they would be able to terminate the contract Builder. Contracts are very different from one to the other, so I would recommend in those instances, getting an attorney involved early on in the process before the contract is even signed. Oftentimes though, we get involved after the contract is signed, so if it's between a buyer and a seller and realtors are involved, the realtors usually negotiate the contract on behalf of their clients, the buyer or seller. Once that contract is executed, then it gets sent over to our office. And we will start reviewing the contract and describing to whomever our client is, what their rights and obligations are in the contract. Sometimes if it's not early on in the contract process, which is typically when I would recommend, it can be when a dispute happens. So whenever there's a deposit dispute, usually, and things are already a little bit messy between the buyer and the seller, those are just different instances where an attorney typically would step in. But if they're looking for a real estate attorney, I recommend getting started early on in the.

Pauline Chilton: 10:35

Process. I totally understand that. As a Realtor who has been in the business for over 18 years, I've got a lot of experience working with real estate attorneys and quite often that's one of the questions that I ask as we are going over the contract with the buyers or the sellers. I'm usually asking, do you have a family attorney or do you have an attorney that you would like to work with during this process. Can you give some examples of how a real estate attorney can help resolve disputes between buyers and sellers during a transaction? Yes,

Kathryn Huyhn: 11:14

absolutely. So some of the disputes that we deal with are permit issues. So under the far bar contract, the "As Is" the As Is contract, doesn't require a seller to close out any open or expired permits on the property before closing. However, if permits are found and the buyers still within their inspection period, that buyer may object and they have leverage because you know, under As Is contract, the buyer can cancel and terminate the contract if they're in their inspection period. So they might ask that seller to close out any open or expired permits. In this market, in Tampa, we often represent sellers in Sarasota and Manatee, we represent buyers typically in that market. So here, if there are permit issues, we would help the seller close out those permits, and often that means reaching out to the county, seeing what those requirements are. Once they tell us what those requirements are, it might be contacting contractors to close out the permits or get work done in order to be able to close those permits out and complete the final inspection. Other things, again, a deposit dispute. If the seller wants to cancel the contract because they have a better offer, you know, we have to advise that seller of what their rights and responsibilities are and what the consequences are if they decide to cancel the contract for whatever reason that they want to. If we're representing the buyer, it would be making sure that their deposit is protected and making sure that they understand what their deadlines and obligations are to ensure that their deposit is protected at the end of the day. One of

Pauline Chilton: 12:46

the things you brought up earlier in our conversation was HOAs. And because there are quite a few communities in Florida, whether they are single family homes or condo communities, there are HOAs. And I believe it's part of our job to help the public to understand what is an HOA, what is involved with an HOA? So can you explain from a legal perspective, what are some legal considerations to keep in mind when buying or selling a property that is part of a homeowner's association, H O A for short?

Kathryn Huyhn: 13:23

Absolutely. And the reason why HOAs exist is to maintain the values of properties. In these communities, condos or an HOA community, there are shared areas and the owners of these communities need to somehow be able to maintain these areas such as a common area, pool or shared walls. And so that's why an HOA exists to govern the rules and restrictions of the entire community. It governs how these common areas are maintained and how it gets paid for by the owners. An important thing for any buyer or seller in these communities is to make sure that you review the rules and restrictions. So these HOAs and condo associations are going to have documents that were recorded in the public records to establish these communities. And those documents contain rules, regulations, restrictions, articles and bylaws of the HOA, how it governs, and it's important whenever you're reaching out to a buyer or seller to understand what their needs are and their concerns. Sometimes these restrictions contain pet restrictions, so there are restrictions on the size of a pet, the breed of a pet, and if the buyer has these pets, they might be denied from being able to live in these communities or from having their pet if they move into these communities. Other times, the buyer could be an investor or planning to use this property as a second home and using it as a short term rental. Well, there are a lot of communities here in Florida that have rental restrictions that require an owner to live on the property for two years before they can rent it to kind of restrict that short term rental use where you have people coming in for three days or a week and it disrupts the community and the livelihoods of other owners in the community. Always, if any buyer or seller is looking to purchase in these communities, there is are requirements to disclose that there's an HOA. There are requirements also if it's a condo to provide the documents to a buyer, but it's really up to the buyer to really review those documents for themselves to see if there are any restrictions or rules that would affect their ownership or how they can use the property for long-term use.

Pauline Chilton: 15:42

Another thing that we talked about earlier was title issues. So as you were bringing that up, I was thinking of all kinds of questions, but one of the things that I thought about was just explaining the process for resolving title issues during a real estate transaction.

Kathryn Huyhn: 16:00

Yes. So title issue issues can come in so many different shapes and forms. So whenever a title commitment is prepared, it gets sent over to the parties and if there are any concerning title issues, a title objection would then be sent from the buyer to the seller objecting to these title issues, either making sure that they're cleared or any exceptions that could be of concern can be deleted from the final owner's policy of title insurance. The title issues that we see can be anywhere from a probate. So if somebody has died, there are often many different requirements that the title underwriter will require that happens before the property can be sold. So such as an order determining homestead and approval from the heirs of that property that they consent to, how the money gets distributed. Other times it can be judgements that attach to the property, getting payoffs for those judgements if it's not primary residence. Also, another thing that can come up is liens. So if there's a lien on the property as well, those have to be cleared. So once that title objection gets sent, the seller then has a certain period of time where they would be able to clear it. It creates an automatic 30 day extension for the seller to be able to clear any title issues. And if they're not able to clear it, the parties can either extend or terminate the contract because the seller can't provide clear marketable title at closing.

Pauline Chilton: 17:28

Good. So we've, we've had a great discussion about the different legal aspects of buying or selling real estate. The bottom line here is that attorney's job is to help things go smoothly and to protect the party that they are representing. So whether that's the buyer or the seller in the transaction, it's really making sure that your rights are protected and that you are able to go into a property that you can resell in the future and that you can have some enjoyment of. So I wanna thank you so much, Kathryn for joining us today, and just wanted to know if you had some closing remarks or if you want to share with our audience how to get in touch with

Kathryn Huyhn: 18:13

you. Yeah, sure. So you can always reach out to me. My email is, K H U Y N H @berlinpatton.com. My phone number is (813) 467-7500. At the end of the day, our firm and all of the attorneys in the firm are resources for realtors, buyers, sellers of property, and feel free to reach out to us. Ask us questions. We have a website where we publish a blog every week, www.berlinpatten.com. You can subscribe to our weekly blog. It's published every Friday, and you can also come join us for some of our educational seminars. Where we discuss the latest topics that's happening in the real estate industry. So whether it's updates in the condo laws or understanding the different types of contracts involved in real estate, we can be a resource to you. So if you ever have any real estate questions, don't ever hesitate to reach out.

Pauline Chilton: 19:10

Thank you for joining us on this show, and please tune in to the next episode of the Pauline Chilton Show as we explore more of what the Tampa Bay area has to offer. I'm your host, Pauline Chilton, a licensed real estate broker associate in the state of Florida with Berkshire Hathaway Home Services, Florida Properties Group. I move to Florida for the warmer weather to live a healthier, more active lifestyle, and I'm doing this podcast to document my adventures and share my experiences with others. I'd love it if you would follow me on this new adventure. Follow me on Instagram. At Real Pauline Chilton. For more content, check out my blog posts on the show's website at www.thepaulineshow.com, where you can find this episode in written form along with links to websites of the places I've talked about. Listen to the show wherever you get your favorite podcasts. And until next time, take care.