Legal Update: The Future of a Golf Course


In Miami, the local circuit court has recently ruled that the owner of the Calusa Golf Course is no longer bound by a covenant that the property could only be used for a golf course. Adjoining homeowners are livid. 

The owner intends to convert the land into a top-notch hospice facility. Zoning is still an obstacle for the owner, as is the likely appeal of the trial court’s ruling. But unless things change, there will be development on the land and the 248 homeowners in the Kendall area will see their home values fall. The golf course closed in 2011 after operating at a loss for six years. 

For the last eight years, more golf courses have closed than have opened. The National Golf Foundation reports that the number of people playing golf peaked in 2003 and has since fallen 16 percent. The continued economic viability of golf courses is in danger. Locally, at least one golf course closed completely, although it has reopened. 

At the same time, the value of such land has risen. New development in Florida is starved for good land, as few new developments were completed during the recession. And golf courses that are under restrictions find that those restrictions are expiring. 

That was the case at Calusa. There was a 1968 restriction that the land could only be used for a golf course, and that was to last for 99 years unless 75 percent of the adjacent homeowners voted to lift it. Further, the county had gone along with that restriction in permitting the golf course. 

But the court ruled that the Marketable Record Title Act defeated that restriction and the land was no longer burdened by that limitation. The court went further and said that by embracing the requirement of a 75-percent vote by the adjoining property owners, the county had abdicated the zoning process to the residents. 

The golf course owner had tried to obtain the consent of the homeowners, it is reported. The developer offered homeowners $50,000 each to make up for any loss in value and offered to build a three-mile park around the development. When that failed, the owner sued the homeowners and the county, and won, at least at the trial level. 

The importance of that ruling really is not whether the land will continue as an open area, golf course or not, and not whether the Marketable Record Title Act controls. It is really the frustration of the abutting land owners over the fact that they did not have any rights, other than opposing rezoning, concerning land that was vital to them and the value of their land. 

We have opined for decades that homebuyers and REALTORS® should never, ever assume what will happen to abutting property owned by others. This has happened when homebuyers value an adjacent forest only to have it destroyed with the construction of schools, homes, and power stations. 

If it is important to you, then you need to check it out. And even then, circumstances may change. The public boat ramp you value may close. The quiet you relish may come with a harsh awakening. But what is really important is at least to perform some investigation into abutting property and its uses; do not just assume. 

Lastly, it is probably prudent under Johnson v Davis for a home seller and REALTOR® to now disclose to a prospective buyer any information that suggests that important adjacent or nearby land may be about to be used in a different manner, if it is substantial and may adversely affect the value of the seller’s home. 

Joe R. Boyd
TBR Legal Counsel
Board Certified Real Estate Attorney
Boyd & DuRant, P.L.

Volunteer Spotlight: Jim Taube, Salvation Army


The Salvation Army was founded in 1865 in England by William Booth, who preached hope to desperately poor congregations. The Salvation Army continues to meet human needs without discrimination.

Today, the Salvation Army is best known for its emergency disaster services, providing not only food and water but hope and comfort in a time of distress. However, the Salvation Army also provides adult rehabilitation for those struggling with drug and alcohol addiction; prison ministries that offer counseling to inmates; elder services; and veterans’ affairs services. In recent years, the Salvation Army has played a big role in combating human trafficking.

Most people are familiar with the organization through their Red Kettle Campaign. This annual fundraising activity is probably the one that requires the most manpower. Although many of the hours spent ringing the bell for are covered by volunteers, many hours are also covered by paid workers. While this provides temporary jobs for a few, often there’s not enough money collected in a day to pay their salaries. This is why the need for volunteers is so critical.

In the past two years TBR has participated in the “REALTOR® Ring-A-Bell” day. As a member of the local Salvation Army Advisory Board, I am again soliciting the help of TBR members to ring bells at Red Kettles in several Tallahassee locations. This year Wednesday, December 17 has been chosen as our REALTOR® Ring-A-Bell day. We are asking that you volunteer an hour or two for this worthy cause that helps so many people.

The money raised in these few short weeks around Christmas goes a long way towards supporting the local Salvation Army programs throughout the year, including the children’s summer music camp. An hour or two spent ringing a bell is fun and rewarding. Enlist the help of others in your office or pair up with a friend or associate to help this worthy cause. This year we have chosen to focus our efforts on the kettles at five stores to make the most efficient use of everyone’s time. Bell ringing times are from 8 a.m. to 8 p.m., Wednesday, December 17. Even if you can only do it for an hour, it will be a big help.

This year the locations we have chosen are:

Publix (Centerville) 2111 Capital Circle NE
Publix (Killearn) 3521 Thomasville Rd.
Publix (Mahan) 3111 Mahan Dr.
Publix (Park Ave.)  101 N. Blair Stone Rd.
Walgreens (John Knox) 2349 N. Monroe St. 

To reserve a time to volunteer at a Salvation Army Red Kettle, please contact the following:

Jim Taube

Legal Update: A Free Home, Maybe?


In mid-October, the appellate court for North Florida and based in SouthWood handed down three rulings that hammered lenders who come to court unprepared. In reversing three foreclosures because the lenders’ witness was unqualified to testify, two of them were with prejudice, which means that the lender cannot again pursue the foreclosure, having the possible effect that the homeowners got a free home. 

The lenders involved in the three different cases were Bank of New York Mellon, Deutsche Bank National Trust Company, and Nationstar Mortgage, LLC. The latter involved whether Nationstar even held the note and mortgage, and resulted in that case being the only one sent back to the trial court for some further proceedings. 

The legal principle is simple. When you go to court as the plaintiff, you only have one chance to prove your case. If you don’t have enough evidence, or you don’t have the right witness, you lose. If you somehow win in front of the local judge, the appeals court will reverse the ruling and let the homeowner win. In such cases where the lender has already been to court, they do not get a “mulligan,” a do-over of the trial. They are left with a mortgage on the property that they cannot enforce. 

No one deserves a free house. It is a nice idea if you or I are the ones getting the free house. But in reality either the stockholders of the lender pay for that home or, if the loan is government insured, the government will pay for the house. 

But the message to lenders and other plaintiffs is to come to court prepared. 

In the 17-page opinion in Burdeshaw v. BYN Mellon, the lender lost because its employee, a mortgage servicer, had the loan printout but knew nothing about where the payment information came from that predated the lender obtaining servicing rights on the loan. There are four elements that have to be proven in order to get the court to look at the bank printout. The bank’s employee could not meet those elements. 

And a similar opinion was issued by the Fourth District Court of Appeal in West Palm Beach in 2013, but it only applied to condo associations. With these new rulings, all lenders are covered. 

The pressure on lenders to complete foreclosures is mounting. In 2010, the Attorney General attacked some of the tactics used by attorneys for the lenders, and some of the servicing companies. New foreclosure filings came to a halt when a new foreclosure law required the lender to have the promissory note before it started the foreclosure process. Many could simply not find the note. 

Now the foreclosures have resumed and chief circuit judges have special money and special instructions to clear out the backlog, one way or the other; i.e., grant the foreclosure or dismiss it.

With that in mind, some judges have erred on the side of letting in the questionable evidence. The First District Court of Appeal, in three opinions issued over two days by various judges at the appeal court, made it clear that (1) evidence in foreclosure cases has to meet the same standard as any other lawsuit, and (2) there will be no do-overs where the lender had its day in court and just came to court unprepared. 

Joe R. Boyd
TBR Legal Counsel
Board Certified Real Estate Attorney
Boyd & DuRant, P.L.

Phase I Environmental Site Assessments


Do Your Due Diligence: Environmental Assessments of Commercial Properties 

The purpose of a Phase I Environmental Site Assessment (ESA) is to determine if a property has any potential environmental issues that may create a liability for the purchaser. It is normally required by a lender for a commercial property. The Phase I ESA is typically one of the early steps performed during the due diligence process of land acquisition. 

Phase I ESAs are conducted in accordance with the American Society for Testing and Materials (ASTM). In a nutshell, the assessment consists of state and federal database searches, historic aerial photography review, interviews with former and current landowners, a physical site reconnaissance, and a report documenting the findings and recommendations. Sampling of water, soil or air is typically not performed during a Phase I, but may be recommended as the next course of action if contamination is suspected. 

For the most part, Phase I ESAs are concerned with the possibility of hazardous chemicals that may be in the soil or groundwater of a property. Such contamination can originate from adjacent properties such as dry cleaners, gas stations, or other industrial businesses. They also might originate from the client’s property in the form of leaking underground storage tanks or previous land use. Previous or current agricultural practices can also play a role from the use of fuel tanks, cattle dipping vats, insecticides, and pesticides. 

Here are some items to think about when hiring a professional to conduct your Phase I ESA:  

  • Hire an experienced consultant with an environmental science background. Phase I ESAs cover a broad variety of scientific disciplines, such as geology, chemistry, and biology. Ask them how many Phase I ESAs they have prepared in the past. 
  • Make sure they go onsite and inspect the property. Although they will look at a variety of maps and historic aerials, nothing beats feet on the ground. An area that was fine yesterday may have become a dumping ground for someone’s old tires today. 
  • If there are structures or old buildings on the property, ask the consultant to determine the potential for asbestos or lead-based paint. While a Phase I ESA typically does not include testing for these items, it would be good to know if the potential exists, especially if your client is contemplating demolition activities. 
  • Be sure to provide a contact person to discuss the parcel’s history with your consultant. Owner interview is a part of the ASTM process and is very important in understanding past property uses and determining when further information might be useful. Interviewing previous property owners is another critical item that will allow the consultant to ascertain if previous uses of the property may have impacted the property. 

A careful review of the regulatory agency databases is another important part of a Phase I ESA that will oftentimes shed light on the subject property and adjacent property uses; e.g., registered underground storage tanks may exist on an adjacent property.  

Prices to conduct a Phase I ESA vary widely, from $500 to $2,500 or more for larger parcels. This is one area where you definitely get what you pay for. Just the regulatory agency database search alone is normally upwards of $200. So if a person quotes you a price of $500 to assess your 500-acre property for commercial development, you can be pretty sure they aren’t going to do a very thorough job.

Remember, a Phase I ESA protects your client from having to undergo costly cleanup work to correct a problem that may have been caused by someone else. The potential for litigation is also high if contamination is found. 

Valerie Weeks
The Phoenix Environmental Group, Inc.

Volunteer Spotlight: Premier Construction, Thanksgiving Celebration


This year is the 30th annual Tallahassee Community Thanksgiving Celebration, Thursday, November 27 from 11 a.m. – 1 p.m. at American Legion Post 13 on Lake Ella Drive. Everyone is invited for a traditional turkey dinner, musical entertainment by Charles Atkins Band and DJ Amanda James. 

Volunteers are needed to join this cooperative community effort to serve Thanksgiving dinner to nearly 1,000 people, to help with everything from turkey prep and serving to raising tents and cleaning up. Volunteers must pre-register and attend one hour of training. Call Lynn at Premier Construction, 205-5211 or email her at

“The Community Thanksgiving Gathering doesn’t just feed people,” said event sponsor Jason Ghazvini of Premier Construction. “Sharing in this gathering is like getting a huge bear hug of comfort and hope at a time when money is tight for everyone. We gather to enjoy a few hours of freedom from the daily worries and stress that these tough economic times have bought to all of us.  It’s amazing what strength can be gathered from the simple acts of sharing and caring—t sharing a meal, some conversation, and a little time within the confines of a caring community.  We realize that we are not alone and we gain strength from one another so that we are better equipped to overcome whatever obstacle we may be facing.” 


Although Premier Construction had been involved in the “Helpings from the Heart” event nearly every year since it began, Pepper took a more active role following the loss of that event’s major sponsor, Bill Thomas Chevrolet. However, in late October 2002, the Premier Construction family was gathered together and Pepper Ghazvini presented the front page of the Tallahassee Democrat with the headline “Thanksgiving Canceled”; the article that followed explained that the many sponsors of the community Thanksgiving dinner were unavailable because they had committed their resources the recovery following Hurricane Andrew. Pepper was quite clear as he held up the paper: “Thanksgiving will not be canceled as long as we are here, so let’s get this done!” That was the first year the Ghazvini family businesses fully sponsored the lunch. They underwrote $16,000 worth of expenses and provided staff support to make sure everyone had a great Thanksgiving. Pepper even stopped by local florists the night before Thanksgiving to collect donated flowers to decorate the tables. He insisted that everyone be treated like honored guests, and attendees were welcomed to a meal complete with table linen, beautiful flowers, and fruit. 

Those traditions continue to this day, and this year marks the thirtieth year for the Tallahassee Community Thanksgiving. The Ghazvini Family Enterprises have solicited participation from many community sponsors who now share the joy this event supplies to all who are involved.  Premier Construction coordinates the event activities to ensure it’s available to all who need it. Our community comes together to fill stomachs and nourish the souls of between 800 to 1,200 people each year. Consider joining the nearly 200 volunteers who spend Thanksgiving with us serving Helpings from the Heart. 

Jeffrey D. Doxsee, Sr.
2014 TBR President
Capital Property Consultants

DigiTally: Where Community Pride and Technology Merge


Community pride in Tallahassee is seen everywhere. From fantastic neighborhood associations, volunteerism, beautiful parks and trails to, now, a city that encourages residents to help in the process. 

While the majority of the population is appreciative to live in a community where these values are part of our social responsibility, there are citizens that choose to vandalize Cascades Park with graffiti or leave eyesores in their yards to detract from the beauty of their community. It is our duty to overcome these minor setbacks. 

As many of us use the web to do everything from paying bills to keeping in touch with friends through social media, the Tallahassee community now can assist our city service department by reporting service requests via the web as well. We are a culture that works beyond the hours of 9 to 5. There is not always time to fit our public duties into our busy schedules. Now, due to some innovation from the city, you can help 24/7. 

Recently, as the Eastgate Neighborhood Association agreed on a vision of a better neighborhood, we began our initiative list for the next three years. Many initiatives included making sure landscape, yard trash, lighting, tree trimming, and right-of-way spaces be better maintained. Our theory is that if the association can lead the way, the whole neighborhood will follow. 

Conveniently, the City of Tallahassee has rolled-out their new DigiTally service. What is it?  It is a web- or app-based system to report concerns in the community.  There are over 100 categories of community concerns that can be reported via the DigiTally service.  Abandoned cars, debris, tree trimming needed, lighting, replacing a recycle container, trail concerns, stray animals, potholes, drainage ditch maintenance, traffic signal repair, park mowing.  You can even view photos of adoptable pets. This is just to name a few.  And, all this can be done on your desktop computer, your laptop, smartphone, or tablet. 

To see the service for yourself, go to and find DigiTally app link; once on the page, you can choose which platform you would like to use. Or, look for the download in the Google or Apple app stores. 

The system works much like social media:

  1. You submit a request
  2. The system acknowledges your request
  3. You receive updates on progress including comments directly back from the city employee handling the request.
  4. You can review all requests submitted throughout the city or just those submitted by you. 
  5. Citizens can “support” requests or comment on them. 


The city has given us an easy way to communicate. It is a great step by the city to include every generation our community serves to voice their concerns. Conversations with Carrie Poole from the city’s Department of Communications have confirmed the city is committed to successfully implement DigiTally. Implementation steps include contests and training for city employees so every department receiving requests can handle them appropriately and in a timely manner. While the system changes the way many city employees handle their daily tasks, a tiered roll-out is already taking place. My use of the system leaves me excited for the entire community to embrace it. 

You can expect to see the city begin a marketing campaign for the service in the next couple months. I encourage Tallahassee residents to take advantage of this new service while supporting an initiative that allows citizen concerns to be heard in a new, progressive format. 

Michael Still
Member, Eastgate Neighborhood Association

Legal Update: Mortgage Regulation Gone Wild


Ben Bernanke got turned down for a loan to refinance his home in Washington in September. Yep, the former chairman of the Federal Reserve got turned down trying to refinance the home in which he and his wife have lived for over a decade, according to a recent speech he gave in Chicago. 

He recently left a salaried job with the federal government for over ten years to start a new career in the private sector. The fact that he is the most famous economist in the world and he has books sold everywhere apparently was irrelevant. The fact that he probably makes $100,000 for a single speaking engagement was irrelevant. What was relevant was that he had changed jobs and did not have a few years of consistent earnings in his new venture. 

Crazy is the only way to explain such lending decisions. Bernanke and his wife purchased their home in 2004 for $839,000 and it is assessed now at about that same value. 

But there is no flexibility, even when common sense says what should be done. And the best efforts of our local mortgage bankers are oftentimes frustrated because of strict and arbitrary rules. 

FreddieMac and FannieMae purchase most of the new residential loans. Their rules must be followed if banks want to sell their loans, and they do. Rules that require two years of continuous income cannot be bent even for the former head of the Federal Reserve. 

And now the Dodd-Frank rules are being implemented, with little predictability as to what they will do and how they will affect lending. Best bet is to rely on local experienced, informed mortgage bankers. The new rules assure that government will overreact to the mortgage crisis by denying credit to those who deserve it, while continuing to aid those that caused the crisis. 

But after a while, mortgage lending will be too difficult for some. Alternatives like cash transactions and owner financing may again become an attractive alternative, at least until the mortgage lending world settles down. 

What we do know is that you cannot simply go to the lender you know and get a residential loan, or refinance one. Everything is getting automatic and in the lending world, and that means strict guidelines on employment histories and credit scores. 

And that means that even if you have been the 14th Chairman of the Federal Reserve for the last eleven years, and likely to earn a million or more a year, you just might get denied refinancing of your home, because you have not had a salaried job for two years. Ridiculous. 

Joe R. Boyd
TBR Legal Counsel
Board Certified Real Estate Attorney
Boyd & DuRant, P.L.

2015 Florida REALTORS® Committee Service


The Tallahassee Board of REALTORS® is well represented at our state association. The following TBR members are serving on Florida REALTORS® committees in 2015:

Bert Bevis
DVP Information Exchange
Executive Committee
REALTOR® Party Member Involvement Committee
Property Management Subcommittee
REALTOR® Party Town Hall 

Rob Boyd
Local Board/Assn. Attorney Council 

Joe Boyd
Local Board/Assn. Attorney Council 

James Curley
Industry Data and Analysis Forum 

SW Ellis
Communications Committee
Attainable/Workforce Housing Subcomittee
Leadership Academy Committee 

Mike Ferrie
Board of Directors
Business Trends & Technology Forum 

Paul Galloway
MLS Administrators Info Exchange 

Sonia Jewell
Professional Development Committee
Local Education Directors Subcommittee 

Susan Jones
FPC and Key Contacts Subcommittee 

Clay Ketcham
Legislative and Regulatory Business Issues
Chairman, Appraisal Subcommittee
State and Local Taxation Subcommittee
Faculty Subcommittee
Public Policy Committee 

Patti Ketcham
Education Foundation Board of Directors
Chairman, Faculty and Program Development Subcommittee
Chairman, Professionalism Subcommittee
Chairman, Faculty Subcommittee
Professional Standards Forum
Nominating Committee
Professional Development Committee 

Debbie Kirkland
Technology Tools Workgroup
Land Use, Property Rights, and Sustainable Development Subcommittee
Chairman, Industry Data and Analysis Forum
Nominating Committee 

Steven Louchheim
Finance Committee
Industry and Data Analysis Advisory Board
Building Committee
Assn Executives Council 

Miriam Nicklaus
Board of Directors 

Mariela Santurri
Board of Directors
President/President Elect Forum 

Trina Searcy
Board of Directors
President/President Elect Forum

Lucretia Thomas
Professionalism Subcommittee 

Ted Thomas
FPC and Key Contacts Subcommittee

Volunteer Spotlight: Miriam Nicklaus, Catholic Charities


I am so very pleased to share with you my experience with Catholic Charities of Northwest Florida. Many people think that this agency only serves people of the Roman Catholic faith. Nothing could be further from the truth. Catholic Charities serves based on need, not creed.

Many people only know the agency through Christmas Connection and still others did not even realize that Christmas Connection is a program of Catholic Charities. This is only one of the programs and services offered by Catholic Charities. “Providing Help, Creating Hope, Serving All” is the mantra, and this is why I got involved in the first place.

Catholic Charities is one of the major agencies in Tallahassee that truly helps the most vulnerable people in our community. People hit hard times. A lot of people are only one paycheck away from being unable to pay rent, utilities, or buy food for their families. Catholic Charities is that safety net for them. Catholic Charities offers people a hand up. Not only are people offered financial help with bills and food for their families, one of the programs, Circles, provides financial literacy training for clients to help families lift themselves out of poverty.   

Our country continues to address the issue of immigration. There are many families and individuals that are persecuted for their beliefs in their home countries. Catholic Charities offers a safe haven for them. The Tallahassee office is currently helping many of these immigrant families escape persecution, providing them with a place to live, with necessary furniture and supplies, and enrolling the children in school. Overall, we assist the families in their new start in a new country and community.  

The program that Tallahassee is well aware of is Christmas Connection—and it is amazing! In 2013, we provided Christmas to more than 600 families—600 families that would not have had Christmas otherwise. Working at the facility, adopting a family, and making donations are great opportunities for us to learn about the need in our community. Christmas Connection has grown over the years. Catholic Charities works with case managers from over 60 community agencies to identify recipients. It takes hundreds of volunteers make this program possible.

I have been involved with Christmas Connection for over a decade, and my involvement is nothing compared to that of many other volunteers. When my children were young, we volunteered together, and they learned about the importance of helping those less fortunate than themselves. Christmas Connection families make a wish list; many people think it is all about electronics and fancy items, but the lists are filled with basic needs, including clothing, food, and toiletries. In delivering Christmas to the families you are filled with a feeling that is hard to describe.

As a Friend of Catholic Charities, I have gained so much more than I have given. My main duty is to help raise awareness of our programs, to raise money needed to run the programs, and to offer my assistance to further the mission of Catholic Charities.

Won’t you join me? You can help by adopting a family during the Christmas Connection. Several brokerages have adopted families over the years. I challenge all of the real estate brokerages in Tallahassee to adopt a family. Please contact me if you have any questions:   

Miriam Nicklaus
2014 Secretary, TBR
Armor Realty of Tallahassee

President’s Message: Presidential Gala


While this year we have highlighted many of the multiple charities that all of our REALTOR® and Affiliate business partners are involved in, I have chosen American Cancer Society (ACS) as our 2014 Gala charity. 

ACS is an organization that is trying to help find cures and improve the quality of life for the many victims of Cancer. Everyone is impacted by cancer—as individuals, or through friends or family. I lost both of my parents to cancer; our community mourned as little 10 year old Trent McElroy lost his battle last year; and we have many past presidents of TBR who have battled and are currently fighting cancer. 

The good news is there have been more advancements in cancer research in the last 10 years than in the prior 100 years. Research facilities, trained medical professionals, and scientists all require a tremendous amount of resources to continue to fight this battle. We have thousands of young, brilliant minds that are recruited into medical research every year; who knows when the next great breakthrough will come.

 Thank you everyone for doing your part in helping with this ongoing struggle. Please reach out to your fellow members who are going through these trying times, and consider supporting ACS. 

Join us at the “Denim & Diamonds” Presidential Gala on October 24 at Goodwood. Great music by DeepWater Band, dancing, Casino Nights, food by 101 Restaurant, chances to win prizes (dance competition; party bucket drawing; Diamond Lakes; Clue Whodunit contest)—and support for a great charity! 

God bless you. 

Jeffrey D. Doxsee, Sr.
2014 TBR President
Capital Property Consultants