LLA Esquires

Cancellation of a timeshare contract

U.S. Federal Trade Commission mandates a “cooling off period” that allows people to cancel some types of purchases without penalty within three days.^[15] Additionally, almost all U.S. states have laws that specifically govern cancellation of timeshare contracts. In Florida, a new timeshare owner can cancel the purchase within ten days.^[16] The law differs by jurisdiction as to whether out-of-state purchasers are subject to the rescission period of their state of residence, or the rescission period of the state where the timeshare purchase was made.

Ins and Out of Timeshare

What is timeshare?

A timeshare interest is right to occupy and use accommodations, facilities, or recreation sites. The three most common forms of timeshare interests are: 1) fee simple ownership in the underlying real estate; 2) lease or license arrangements permitting ownership rights for a specified period of time; and 3) point systems.

In a fee simple ownership arrangement, the purchaser has an undivided interest in fee simple that gives the purchaser an exclusive right to occupy the premises during a designated time period. The purchaser receives a deed to the property and the rights that accompany deeded ownership. Deeded ownership allows the timeshare owner to receive title to the property, as well as the right to rent, assign, sell, contribute, bequeath, or otherwise transfer the property to a third party.

In comparison, under a lease timeshare arrangement, otherwise know as a “right to use” arrangement, the timeshare purchaser does not obtain any ownership interest in the resort property, but rather receives the right to use the timeshare unit for a specified period of time, after which the title to the timeshare property reverts to the developer. The “right to use” form of ownership essentially conveys to the purchaser a license, lease, or similar type of contractual right governed by the terms of the timeshare agreement.

The third form of a timeshare interest is point systems, also referred to as “Vacation Clubs,” which give members access to different resorts within a defined resort group. Point systems are similar to lease and license arrangements because they allow the purchaser to use the property or properties for a certain amount of time each year during a specified season for a stated number of 66 years. In point systems, owners purchase points that can be used to access various types of accommodations, resort locations, amenities, and other travel services. Unlike a lease, this type of arrangement is purely contractual; therefore, property law remedies are unavailable to a point system purchaser.

A common characteristic of all timeshare forms is that each requires payment of annual maintenance fees. Owners share both the use and the ongoing costs of upkeep of the timeshare resort property. Yearly maintenance fees are established solely by the resort owners.

Prenuptial Agreements

When asked why they consider a prenuptial, many couples say they wish to make it in writing that the assets purchased prior to the marriage will remain personal. If this is all it is to be wished for, the prenuptial agreement is not necessary because in its absence, the law says the same.

What property rights should a prenuptial agreement protect then?

Generally, contrary to common belief, prenups protect assets that may otherwise be subject to marital property laws. Specifically, these documents may be used to:

Protect one party from taking on the debts of the other
Protect specified assets of one party
Determine the manner in which property is passed on after death
Simplify property division in the event of divorce
Clarify financial responsibilities of the parties

Should I use a sign a prenuptial agreement prepared by my partner’s attorney?

No. You should be advised to consult an attorney before you sign the agreement and your attorney should make sure the agreement serves the best interest and the validity of the agreement. For a prenup to be valid in many states, it must satisfy the following conditions:

Prenup must be written and signed by both parties and properly executed.
Prenup must have been read prior to signing.
Prenup must not have been signed under duress.
Prenup must not have false information or be unconscionable.
Both spouses must have had independent counsel.

Do you know what you have signed up for?

When you sign a contract offered to you as a “standard” prepared by an attorney, do you know what you are agreeing to? Unfortunately, many would say no. Many stop at the products/service and price, leaving the rest as if they are mandatory. “there is nothing I can do about it anyways” they say to themselves.

Unfortunately, this has proven to be extremely dangerous. One example that can show the gravity is Arbitration Clause.

An arbitration clause requires that disputes arising out of contracts and transactions be resolved through arbitration. many people don’t know what arbitration is or how it works, let alone whether it is beneficial or detrimental.

Arbitration Pros and Cons

Pros of Arbitration includes minimized hostility, usually cheaper than litigation,

faster than litigation and simplified rules of evidence and procedure.

But arbitration has drawbacks as well. With arbitration, you have no right to appeal if the arbitrator’s award is unfair or illogical. Moreover, the cost of arbitration is on the rise. Potential arbitration costs include filing fees, hearing fees, administrative fees, hearing room rentals, and arbitrator fees that typically range from $375 to $1,125 an hour.

Know the Terms of Your Agreements

Smart things to do is to read or have an attorney review the agreement you are offered, pay attention to all terms including the fine print.

Are you going to be in trouble for paying your employees 1099?

Do you know it is not up to you or your employment to decide whether your worker is an employee or an independent contractor? Paying a worker a 1099 definitely saves you tax but do you know if you mis-clarify a worker as a independent contractor, you will be audited and fined?

In order to avoid IRS’s unfavorable attention, it is critical to learn how IRS defines independent contractor.

IRS’s publication explains the concept of independent contractor. It provides that people such as doctors, dentists, veterinarians, lawyers, accountants, contractors, subcontractors, public stenographers, or auctioneers who are in an independent trade, business, or profession in which they offer their services to the general public are generally independent contractors. However, whether these people are independent contractors or employees depends on the facts in each case. The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done.

In determining whether the person providing service is an employee or an independent contractor, all information that provides evidence of the degree of control and independence must be considered.

Common Law Rules

Facts that provide evidence of the degree of control and independence fall into three categories:

Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

Accordingly, you must weigh all these factors when determining whether a worker is an employee or independent contractor. Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another.

The keys are to look at the entire relationship and consider the extent of the right to direct and control the worker. Finally, document each of the factors used in coming up with the determination.

File Nonprofit organization in Florida

What is nonprofit organization? A nonprofit organization is one that qualifies for tax-exempt status by the IRS because its mission and purpose are to further a social cause and provide a public benefit. Nonprofit organizations include hospitals, universities, national charities, and foundations.To qualify as a nonprofit, your business must serve the public good in some way. Nonprofits do not distribute profit to anything other than furthering the advancement of the organization. As such, you will be required to make your financial and operating information public so that donors can see how their contributions are being used. An individual or business that makes a donation to a nonprofit is allowed to deduct their donation from their tax return. The nonprofit, likewise, pays no taxes on any money received through fundraising.

File Nonprofit organization in Florida Besides Article of Incorporation, Chapter 496, F.S., the Solicitation of Contributions Act, requires anyone who solicits donations from a location in Florida or from people in Florida to register with the Florida Department of Agriculture and Consumer Services (FDACS) and to renew annually.

If you intend to apply for IRS federal tax exemption as a charitable organization, your articles of incorporation must contain a required purposed clause and a dissolution of assets provision.

IRC Section 501(c)(4) provides that social welfare organizations are both: • Not be organized for profit. Operated exclusively to promote social welfare. Has net earnings devoted exclusively to charitable, educational or recreational activities. common good and general welfare of the community.

USCIS’s Warning of Immigration Fraud

While you can file USCIS forms yourself, many people prefer to have legal representation. If you are looking for legal representation, the following are guidelines to keep in mind. An authorized legal representative must be either:

An attorney who is:
- A member in good standing of the bar of a U.S. state or territory, or the District of Columbia,
- Not disbarred or otherwise restricted in the practice of law, and
- Eligible to practice law in the United States.

A representative accredited by the Department of Justice’s (DOJ) Office of Legal Access Programs and working for an organization on the DOJ’s List of Recognized Organizations and Accredited Representatives.

An authorized legal representative is allowed to:

Advise you about which forms to file and when to file them;
Give you advice about the correct documents and evidence to submit;
Explain immigration options you may have;
Help you fill out USCIS forms; and
Communicate with USCIS about your case.

We recognize that the immigration process can be complex and that applicants, petitioners, and requestors are at risk of becoming victims of scams or fraud. We encourage you to use the information on this webpage to help safeguard your information and avoid becoming a victim.

When you need legal advice on immigration matters, make sure the person helping you is an attorney or an accredited representative working for a Department of Justice recognized organization. Nobody else is authorized to give you legal advice about immigration matters.

CIS is error-prone and susceptible to political whims, especially if the CIS case officer has a personal bias against any group or if there are diplomatic/political problems with the clients’ home country. Overcoming those errors and bias takes experience and skill, knowing how to beat the bureaucracy at its own game.

Florida’s anti-China Law

On May 8, 2023, Senate Bill 264 (“SB 264”), which restricts the ability of “foreign principals”from or domiciled in any “foreign country of concern” to directly or indirectly own any interest in “real property” in the state of Florida, went in effect as law.

While SB 264 has certain broad sweeping restrictions on foreign principals’s, the restriction on ownership of real estate is clearly focused on those by “PRC Investors”. Specifically, it provides in section 692.204 “Any person who is domiciled in the People’s Republic of China and who is not a citizen or lawful permanent resident of the United States” is prohibited to purchase real property except that those who has a visa “that is not limited to” visitor visa” and asylum approval notice or order can purchase not up to 2 acres residence that is not within 5 miles of any military installation.

Consequences of Violation

The most significant consequence of a violation of SB 264 is a civil action to cause the forfeiture of the real property. After forfeiture and upon the sale of such real property, the proceeds first will be used to repay lienholders, satisfy fines and judgments, and reimburse any costs associated with such civil action, with the balance being paid to the property owner. Other consequences include a potential third-degree felony and fines and penalties.

Application of SB 264

However, the implementation of SB264 has not yet been promulgated by the Florida Real Estate Commission along with other rules and regulations. Various material issues that have arisen in the context of interpreting SB 264 including the scope of the so-called “de minimus exception” (as discussed below), the definition of an “interest” in real property, and the applicability of SB 264 to leasehold and ground leasehold estates warrant interpretations.

It is also worth noting that, on May 22, 2023, the ACLU filed a complaint in the United States District Court for the Northern District of Florida on behalf of four Chinese citizens who reside in Florida and a real estate brokerage firm that principally services Chinese and Chinese American clients. The complaint challenges the constitutionality of SB 264 under the 14th Amendment, the Fair Housing Act, and the Supremacy Clause of the U.S. Constitution. The outcome of this challenge is pending.

Florida Employers Subject to E-Verify Law Beginning July 1, 2023

E-Verify is a federal government verification system that enables business to verify the accuracy of employee information and whether teh employee is authorized to work in the United States.

Beginning July 1, 2023, employers with twenty-five (25) or more employees will be required to use the U.S. Department of Homeland Security’s E-Verify System for new employees.

Penalties

Beginning on July 1, 2024, employers who are found by the DEO to have failed to register and use the E-Verify System three times will face a daily fine of $1,000, with the first violation resulting in a one-year probationary period. Employers will have 30 days to cure noncompliance after receiving a notice of non-compliance from the DEO.
Employers who knowingly employ unauthorized immigrants will face severe penalties, including quarterly reporting and suspension or revocation of licenses.Record Retention Requirements

Record Retention Requirements

For at least three years, the employer must retain a copy of the documentation, as well as any official verification generated, if applicable

Annual Certification Required

Each employer that is required to use the E-Verify system must certify compliance on its first return when making contributions to or reimbursing the state’s unemployment compensation or reemployment assistance system.

What do you do when business partner betrays you?

“We were Best Friends. “ “ He was so nice! “ “We agreed but …” Too many instances tell the same story: business parter betrayal. You are cancelled after a dispute. Your name is removed from the bank account, you are pushed out of the business premise outright. You are left empty handed after hard work. As one of my accountants warned me once, business joint-ventures are essentially business marriage, it hurts like hell when one partner see you as invisible.

You have to do something. You can sue them for breach of contract. The start point is your investment agreement. If the company is incorporation, the document is called investor agreement and bylaw. If the company is LLC, the document is called Operating agreement. If you have a partnership company, you should have a partners investment agreement. If unfortunately all you have is verbal agreement, you need to find any paperwork that reflect your agreed-upon terms.

You can, among other avenues to hold rogue business partners responsible sue them for a breach of fiduciary duty. Fiduciary duties include the duty of loyalty and the duty of care. In member managed LLC, members take part in the day to day operations of the LLC, so they will owe a duty to each other and to the LLC to act in good faith and promote the interest of the LLC.

Word of caution. Verbal agreement is not reliable and legal battle is expensive.

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