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The Coronavirus and Force Majeure Clauses in Contracts – SALCINESLAW

With the Coronavirus (COVID-19) taking over the country and businesses, businesses are now seeking to determine whether they are obligated to perform under their contracts, or whether they can invoke a force majeure clause to excuse performance temporarily or even permanently.

Force Majeure Clauses Generally

Not all contracts contain force majeure clauses and even if they dont, there are still protections afforded by law. The force majeure clause is a contractual provision which excuses one or both parties’ performance obligations when circumstances arise which are beyond the parties’ control and make performance of the contract impractical or impossible.[1]

Force majeure events typically enumerated in contracts include:

  1. acts of God, such as severe acts of nature or weather events including floods, fires, earthquakes, hurricanes, or explosions;
  2. war, acts of terrorism, and epidemics;
  3. acts of governmental authorities such as expropriation, condemnation, and changes in laws and regulations;
  4. strikes and labor disputes; and
  5. certain accidents.[2] Economic hardship typically is not enough to qualify as a force majeure event on its own.[3]

Determining whether a force majeure clause can be invoked depends on the specific language of a contract. Generally, force majeure clauses are confined to situations of the kind or nature which limit damages in a case where the reasonable expectation of the parties and the performance of the contract have been frustrated by circumstances beyond the control of the parties.

State Specific Requirements for Force Majeure Clauses: Florida

The CDC defines an epidemic as an outbreak of disease that infects communities in one or more areas, and a pandemic is an epidemic which spreads across the globe. If a contract at issue lists epidemics or pandemics as a force majeure event, the claiming party could argue that the coronavirus qualifies in light of the fact that is has been officially declared a pandemic by World Health Organization.

If a force majeure clause does not list epidemic or pandemic as a triggering event, it is possible that the coronavirus could be covered as an act of governmental authority in some areas, given that many governments, including the United States government, have instituted lockdowns to prevent the spread of the coronavirus.

If a listed force majeure event occurs, however, there is still further analysis required to determine whether invocation will be successful.

Under Florida law, a party seeking to invoke a force majeure clause must show that the force majeure event was unforeseeable, and that the force majeure event occurred outside the party’s control. This means that the claiming party must show that the event could not have been prevented or overcome, and there additionally cannot be any fault or negligence on the part of the claiming party.

Some contracts additionally require that the claiming party give the other contractual parties notice before invoking a force majeure clause. If the claiming party does not give proper notice as set forth in the contract, it could preclude successful invocation of a force majeure clause.

Businesses seeking to invoke the force majeure clause of their contracts likely have a strong argument that the coronavirus outbreak is an unforeseen event, unless the parties entered into the contract after the outbreak of coronavirus. Whether businesses have also attempted to perform their contractual duties despite the coronavirus outbreak, and whether that is even required under a particular contract are questions that must be assessed on a case-by-case basis.

Other Options: Impossibility/Impracticability and Frustration of Purpose

If a party is unable to successfully utilize a force majeure clause to excuse performance during the coronavirus outbreak, or if a contract does not contain a force majeure clause, other options may still potentially be available to excuse performance, such as the defenses of impossibility and impracticability. The Uniform Commercial Code (UCC) provides that a seller is excused from performing under a contract when “performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.” The Restatement (Second) of Contracts defines impossibility as “not only strict impossibility but impracticability because of extreme and unreasonable difficulty, expense, injury or loss involved.”

If a contract does not contain a force majeure clause, and an impossibility or impracticability defense fails, another possible defense for a party unable to fulfill its obligations under a contract due to the coronavirus is frustration of purpose. For the doctrine to apply, “the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense. ”Put differently, frustration of purpose occurs where “a change in circumstances makes one party’s performance virtually worthless to the other, frustrating his purpose in making the contract.” Business should be mindful, though, that economic hardship such as an increase in the cost of performing under a contract is not enough to assert a frustration of purpose defense.

Conclusion

The coronavirus is having a significant and harmful impact on businesses and their ability to perform under their contracts. However, whether a claiming party can successfully invoke a force majeure clause, an impossibility/impracticability defense, or a frustration of purpose defense in order to excuse performance due to the coronavirus is a fact intensive inquiry and must be assessed on a case-by-case basis. Contractual parties must look to the specific language of the contract, including the applicable law, to determine their likelihood of success.


At the Law Offices of Jacqueline A Salcines PA we are here to help. With over 21 years experience interpreting contracts and practicing business law. the best defense is to hire the right lawyer. Let our experience go to work for you. We can assist virtually, by phone, facetime or skype. Call or email us today.

TRUST | COMMITMENT | RESULTS

JACQUELINE A. SALCINES, ESQ.
706 S. DIXIE HIGHWAY 2ND FLOOR
CORAL GABLES, FL 33146
TEL 305.669.5280 EMAIL: J.SALCINES@SALCINESLAW.COM

If you are buying, selling or refinancing real estate, the most important decision you can make is to hire the right Real Estate Lawyer to represent you. Hiring a real estate lawyer to oversee the transaction and make sure that the transaction goes smoothly is what we are here for.

At the Law Offices of Jacqueline A. Salcines, PA, our real estate lawyers in Miami have over 31 years experience in closing residential and commercial real estate transactions. As both an Accountant and a Real Estate lawyer, attorney Jacqueline A. Salcines has closed more than 5,000 transactions and has the knowledge and experience to represent you in your real estate closing.

Did you know that in Florida, neither the seller, nor the bank can force you to use their title company. This is called coercion and there are laws against it. However, in Florida, if you do not select a title company, the lender will select one for you. Or worse, your realtor will recommend one or the seller will choose, leaving you at the mercy of others. And unprotected!

At the Law Offices of Jacqueline A. Salcines, PA our real estate lawyers serve buyers and seller from all over the globe with their real estate closing transactions. Whether buying a home, an investment property, a duplex, an income producing property, or a commercial land or vacant land, we have the knowledge and experience to protect you as a purchaser of real estate.

We handle the following real estate transactions for our clients:

  • As Is Residential Transactions
  • Commercial Transactions
  • Escrow deposits
  • Title Review, Title Examination and Title Insurance
  • Lien Searches
  • Real Estate closings
  • Sale by Owner transactions
  • 1031-Exchanges
  • FIRPTA and 1040 NR filings
  • Landlord Tenant Matters
  • Commercial and Residential Leases
  • Landlord Tenant evictions
  • Real estate litigation

Buying, selling or refinancing real property is often the largest investment that a person does in their lifetime. Don’t go it alone. Hire the services of an experienced real estate lawyer.

TRUST | COMMITMENT | RESULTS

Jacqueline A. Salcines, Esq.
706 S. Dixie Highway
Second Floor
Coral Gables, FL 33146
Tel: 305 | 669 | 5280

SOUTH FLORIDA REAL ESTATE AND MORTGAGE CLOSING LAWYER

 

FHA/VA loans and Jumbo Loans have changed.  If you are a foreign national borrower or self employed, it is also now easier to get a loan, with stated income or stated asset programs available.

Maybe you are looking into a reverse mortgage?

Or a refinance?

Conforming loan limits for 2019 have increased:

1 unit   $484,350.00

2 unit   $629,200.00

3 Unit  $749,650.00

4 Unit  $931,600.00

 

For a 30-year fixed rate, interest rates are as low as 4/25%.  And a 15-year fixed rate mortgage on a loan is as low as 3.75%,  as of January 7, 2019.

Don’t While. Consult today. Living in Miami and South Florida is a dream to many,  buying a home and purchasing real estate is a scarry decision, and  often is one of the biggest purchases you will make in your life.

Always hire the services of a real estate lawyer owned title company to help you navigate the mortgage and closing world.

A real estate attorney in Miami, is there to work for you and to protect your interests.

Services we offer include:

  1. Checking mortgage documents for any hidden terms the buyer will need to know about to make an informed decision.
  2. A real estate lawyer can also help in negotiating the mortgage terms with the lender or bank.
  3. Reviewing the inspection reports required by all mortgage companies, and renegotiating the price based on such inspection reports and its findings.
  4. Checking the title for encumbrances to ensure there are no others who hold an interest in the home and could be in a senior position to the seller. The lawyer will endeavor to ensure the buyer gets full title to the property before any closing documents are signed.
  5. Purchasing title insurance; this will protect the buyer should someone own a senior interest in the property that was not uncovered in the title search.
  6. Help the buyer understand the necessary surveys of the property.
  7. Overseeing the closing documents, and making sure that the closing goes without hitch and on time.
  8. Recording the deeds and the mortgage documents.
  9. A  real estate attorney in Miami will stand by after closure should any issues arise once the buyer has moved into the property. He or she may also advise on matters such as the $50,000 Florida Homestead Exemption.

A seller of real estate would be advised to enlist the services of a real estate attorney to protect their interests, from negotiations through to closing.

Buying a property is a huge investment and it is vital all legal matters are dealt with by professional real estate lawyers, to ensure everything goes as smoothly as possible, and there are no surprises after the sale or purchase has gone through.

The Law Offices of Jacqueline Salcines offers cost effective services designed to meet your individual needs and requirements”. For strong legal representation, call us at (305) 669-5280 today! Attorney Jacqueline Salcines  has been handling all your real estate and business law needs  for over 20 years.

 Main office 305 | 669 | 5280. Or email the attorney directly: J.Salcines@Salcineslaw.com

TRUST |  COMMITMENT  | RESULTS

Jacqueline A. Salcines

Jacqueline A. Salcines

JACQUELINE A. SALCINES, ESQ.
706 S. DIXIE HIGHWAY
SECOND FLOOR
CORAL GABLES, FL 33146
TEL. 305 669 5280

Email:  J.Salcines@Salcineslaw.com

FLORIDA REAL ESTATE ATTORNEYS

Hands - Holding HouseLast week, HUD announced that it was granting $615.9 million dollars in grant funds to the State of Florida to help us recover from damages caused by Hurricane Irma floods.  This comes after a November grant of $5 billion for Texas hurricane damages.

The funds, almost $616 million, are to be spread out through the Florida Department of Economic Opportunity and is set to give hurricane assistance for housing damages by Irma, business losses, and damage to infrastructure.

If you experienced serious damage due to Hurricane Irma, to either your property or your business, then you may be eligible to receive the hurricane relief funds set up by HUD.

If you require assistance, call one of the many numbers set up by the State of Florida and HUD. Or call us.

 

Florida residents may also call their  recovery assistance representatives to see if they are eligible.  This information can be found by visiting  http://www.hud.gov and http://espanol.hud.gov.

Also, Florida has two HUD Field Offices:

Jacksonville Office
Charles E. Bennett Federal Building
400 W. Bay Street, Suite 1015
Jacksonville, FL 32202
Phone: (904) 232-2627
Fax: (904) 232-3759
Office Hours: 8:00 a.m. to 4:30 p.m. Monday through Friday

Miami Office
Brickell Plaza Federal Building
909 SE First Avenue,
Room 500
Miami, FL 33131-3028
Phone: (305)536-4456
Fax: (305) 536-5765
TTY: (305) 536-4743
Office Hours: 8:00 a.m. to 4:30 p.m. Monday through Friday

 

Call us today for a free no obligation consultation.

Law Offices of Jacqueline Salcines, PA

706 S. Dixie Highway

Second FL

Coral Gables, Florida 33146

Tel.  305  669  5280

Email: J.Salcines@Salcineslaw.com

SOUTH FLORIDA REAL ESTATE LAWYERS

It has become increasingly easier, with the use of the internet, and such websites as AVVO.COM and Justia, to locate an attorney who specializes in your area of need.  Whether you seek a real estate attorney, a litigation attorney, a landlord tenant lawyer, or any other type of lawyer, finding one is a click away. However, the internet should not the sole source for such referrals.  Visit the attorney’s website.  Ask around for referrals of friends and family who have had a good experience with a lawyer.  And read our reviews.  And of most important, the consultation with the attorney should be free of charge and should be face to face with the attorney, not support staff.

  • The hiring of an attorney usually comes at a time of need or extreme urgency.  Lets face it. We don’t have attorneys on our list of favorites and we aren’t calling them daily.  However, when you do need them, the attorney should be readily available and able to assist.
  • At the Law Offices of Jacqueline A. Salcines, P.A., we pride ourselves on providing excellent and timely customer service to our clients and potential clients.  Our firm handles all matters involving real estate, title services, escrow services, litigation, mortgage services and all real estate related issues including:
    • Real Estate Contract Preparation
    • Real Estate Contract Review
    • Escrow Services
    • Title Services
    • Landlord/Tenant law and evictions
    • Litigation
    • Attorney Jacqueline A. Salcines, founding partner and chief operating officer, has been practicing law since 1999, has her Juris Doctorate degree in Law from the University of Miami School of Law, her Accounting Degree from the University of Miami School of Business Administration,  and is also a licensed real estate broker.  With broad experience with both transactional and general civil litigation, her extensive knowledge in real estate and business has allowed us to assist clients for over 18 years in Miami Dade, Broward, Palm Beach and Monroe Counties.

Allow us to put our experience to work for you.

SOUTH FLORIDA SHORT SALE ATTORNEYS

REAL ESTATE LAW

Short Sales, where the mortgage company agrees to accept a “short” payoff of their mortgage (less to pay off the mortgage then what is owed) are experiencing a comeback.  Perhaps it is the fact that second lenders are filing foreclosure actions at higher speeds, or the statute of limitations is running on mortgages, whatever the cause, short sales are slowly increasing.

In a short sale, the homeowner lists the property for sale at a price lower then what is owed to the mortgage company.  The balance to the mortgage company is then negotiated so that the lender accepts the sales price, pays the borrowers closing costs and the borrower’s mortgage debt or balance is forgiven.

A true short sale, done accurately and proficiently will erase the mortgage balance AND the lender will agree to waive or never collect the balance of the mortgage. This is true whether Property values and real estate sales in South Florida and across almost all parts of the country  are thriving.  However, for a select few, short sales still linger.  Many lines of credits with ten-year and 5-year maturity dates are beginning to mature, causing homeowner mortgage payments to rise significantly, wherein the borrower/homeowner can no longer afford their mortgage payments.

Even if home values remain on the increase, if a homeowner can no longer afford their payment, they may try to short sale or modify their loan to see if they can save the home or exit gracefully.

At the Law Offices of Jacqueline A. Salcines, P.A., our lead attorney brings extensive knowledge and expertise in the field of negotiating short sales and loan modifications.  We have an in-house short sale and loss mitigation department headed by managers with extensive experience. Jacqueline Salcines, Esq.is also an attorney, title agent and accountant, able to handle the full transaction without having to contract any outside services, saving the borrower money.    We are here to help iron out issues and move the transaction from imminent default to resolution.

With prompt intervention to resolve disputes amicably, without the need to litigate,  we are here to get borrowers the results they desire. Call us today to see what we can do for you.

For more than 18 years, Jacqueline Salcines has been practicing law with the need of her clients first.  Upon calling the firm you get the feel of how the client is our first priority.  We are here to help you with your purchase or sale and do so with hands-on legal experience.

Main office 305 | 669 | 5280. Or email the attorney directly: J.Salcines@Salcineslaw.com

TRUST |  COMMITMENT  | RESULTS

Jacqueline A. Salcines

Jacqueline A. Salcines

JACQUELINE A. SALCINES, ESQ.
706 S. DIXIE HIGHWAY
SECOND FLOOR
CORAL GABLES, FL 33146
TEL. 305 669 5280

SOUTH FLORIDA REAL ESTATE LAWYERS

Since opening our doors over 18 years ago, JACQUELINE A. SALCINES, P.A. has been performing real estate closings, both residential and commercial, offering full title services, as well as escrow services.  Representing clients from all over the world, we deliver the highest level of personal services to both buyer and sellers, as well as our real estate and banking partners.

WHY CHOOSE US?  With our state of the art digital platform, including electronic recording and digital hosting, there is no geographical limit to the clients we can serve.  Moreover, as an accountant, there is no need for foreign clients to have to enlist or contract the services of an outside CPA or accountant to provide advice or services related to FIRPTA or taxes.  “We handle the real estate transaction from contract to closing, and everything in between.”

Offering the following services, we are conveniently located in Coral Gables and here to serve our clients around the clock:

  1. Contract preparation and review;
  2. Lien searches;
  3. Title search, examination and title agent services;
  4. Escrow services;
  5. Closing services;
  6. Survey requests;
  7. Association matters;
  8. Probate and Estate filings;
  9. Business incorporations including  LLC, INC and other business formations related to closing;
  10. FIRPTA services;
  11. 1031 Exchange services;
  12. Lien negotiation and resolution
  13. Landlord/tenant matters regarding removal of tenants for closings.

Attorney Jacqueline A. Salcines, founding partner and chief operating officer, has been practicing law since 1999, has her Juris Doctorate degree in Law from the University of Miami School of Law, her Accounting Degree from the University of Miami School of Business Administration,  and is also a licensed real estate broker.  With broad experience with both transactional and general civil litigation, her extensive knowledge in real estate and business has allowed us to assist clients for over 18 years in Miami Dade, Broward, Palm Beach and Monroe Counties.

Allow us to put our experience to work for you.


TRUST |  COMMITMENT  | RESULTS

Jacqueline A. Salcines

Jacqueline A. Salcines

JACQUELINE A. SALCINES, ESQ.
706 S. DIXIE HIGHWAY
SECOND FLOOR
CORAL GABLES, FL 33146
TEL. 305 669 5280

Email:  J.Salcines@Salcineslaw.com

SOUTH FLORIDA REAL ESTATE LAWYERS

MOVING FOR SURPLUS AFTER A FORECLOSURE AUCTION

After the foreclosure auction, depending on how much money the successful bidder paid for the property at auction, there may exist a surplus.  Specially if the foreclosure case was initiated by the Homeowners Association or Condominium Association.

As a prior owner, you are entitled to the surplus, or monies paid over and above the amount of the judgment, if you timely file a motion for the surplus and supporting affidavits.

As a third party bidder you may also be entitled to the surplus. We have been successful in obtaining third party bidders the surplus award when we can prove there are damages to the property once taking possession.

While moving for surplus requires a proper Motion for Surplus and proper Affidavit, as well as setting for hearing, it may be tricky and if not done correctly or within the proper time frames, you may lose your ability to go after the surplus.

 

At the Law Offices of Jacqueline A. Salcines, PA we have been assisting Defendants with their foreclosure defense and third party bidders with obtaining surplus belonging to them, for over 18 years.

The Law Offices of Jacqueline Salcines offers cost effective services designed to meet your individual needs and requirements. For strong legal representation, call us at (305) 669-5280 today! Attorney Jacqueline Salcines  has been handling all types of real estate matters for over 18 years. If you have an issue with a residential lease commercial lease, landlord tenant law, real estate contract, title insurance, tax deeds, quiet title or any real estate issue, contact our probate and real estate attorney!

 Main office 305 | 669 | 5280. Or email the attorney directly: J.Salcines@Salcineslaw.com

TRUST |  COMMITMENT  | RESULTS

Jacqueline A. Salcines

Jacqueline A. Salcines

JACQUELINE A. SALCINES, ESQ.
706 S. DIXIE HIGHWAY
SECOND FLOOR
CORAL GABLES, FL 33146
TEL. 305 669 5280

Email:  J.Salcines@Salcineslaw.com

SOUTH FLORIDA REAL ESTATE LAWYERS

MORTGAGE LAW

By now you have to be living in a cave to not have heard of Mr. Cooper.  Nationstar, the nations largest non-bank  mortgage servicer has spent millions rebranding itself, in the heels of its $20 million  loss last quarter, in order to reinvent itself.  The massive rebranding of this nonbank has left millions of homeowners wondering Who Is Mr. Cooper?

The Mr. Cooper transition, which took place weeks ago, is actually all about reimaging. The company is trying to create a more friendly, more customer oriented experience for its consumers.  Its employees are taking more than “50,000 hours of incremental customer experience training in order to ensure that everyone is equipped with the tools and resources needed to deliver the Mr. Cooper Promise. “

What does that mean for the consumer, or borrowers who had loans and mortgages with Nationstar?  Frankly,  not much.  You will now be receiving statements with the Mr. Cooper logo on the top left and when calling the servicer, the name will have changed, and hopefully after all this effort, the customer service as well.

Handling thousands of real estate closings, loan modifications and short sales for our clients over the years, Nationstar was “not very easy to deal with”.  Often you would get pushed around from one representative to another one. Get hung up on. The whole process was very frustrating. Specially when dealing with time crunches for foreclosures or trials for our clients.

When you receive the new statement in the mail from Mr. Cooper, and  you too are confused, don’t worry.  All your mortgage terms will remain the same.  Just the name will have changed.

If you have any questions about a loan modification or are purchasing or selling real estate, give us a call.

With offices in Coral Gables, we have been helping borrowers for over 18 years with their mortgage and real estate needs.  The Real Estate Law Firm of Jacqueline A. Salcines is here to guide you.

We are a full service title company and handle closings from beginning to end.

Practice Areas

  • Real Estate Closings
  • Title Insurance
  • Escrow Agent
  • Contract Law
  • Real Estate Litigation
  • Short Sales
  • Debt Settlements
  • Negotiations

Contact the Law Offices of Jacqueline A. Salcines, PA today at (305) 669-5280 to schedule your legal consultation.

The Law Offices of Jacqueline Salcines offers cost effective services designed to meet your individual needs and requirements. For strong legal representation, call us at (305) 669-5280 today! Attorney Jacqueline Salcines  has been handling all types of real estate problems for 17 years. If you have an issue with a contract, title insurance, tax deeds, quiet title or any real estate issue, contact our probate and real estate attorney!

 Main office 305 | 669 | 5280. Or email the attorney directly: J.Salcines@Salcineslaw.com

TRUST |  COMMITMENT  | RESULTS

Jacqueline A. Salcines

Jacqueline A. Salcines

JACQUELINE A. SALCINES, ESQ.
706 S. DIXIE HIGHWAY
SECOND FLOOR
CORAL GABLES, FL 33146
TEL. 305 669 5280

Email:  J.Salcines@Salcineslaw.com

SOUTH FLORIDA

REAL ESTATE LAWYER

An As Is Residential Contract for Sale and Purchase is a binding contract to sell or buy real property in Florida.  While different from other types of sale contracts, the AS IS residential contract protects the seller in many aspects.  The As Is refers to the fact that the buyer is taking the property as it is, that is, with any defects or problems it has at the time of entering into the As Is contract.  The seller is not required to make any repairs, or to make any credits to the buyer for any items of disrepair, open permits, or matters that appear on the property.  The buyer is not completely unprotected however.

A well drafted  As Is contract allows the buyer to inspect the property and then cancel if the seller is not agreeable to fixing something.  So the buyer can still opt out if he does not like what he sees or is getting, without losing his escrow deposit.

As Is contract carry a myriad of legal terms and deadlines that may be confusing or hard to understand for a layperson. And that is where we get involved.

At the Law Offices of Jacqueline Salcines, PA, attorney Jacqueline Salcines has been a practicing real estate law for over 18 years.  As a title agent, real estate lawyer, and realtor, as well as an accountant, attorney Jacqueline Salcines  is well versed in all aspects of the As Is Residential Contract.   Allow us to protect your interests, whether you are a buyer or a seller , we are here to help every step of the way, from contract to closing.  The first consultation is always free of charge. 

Call us today 305 669 5280

Visit us today at WWW.Salcineslaw.com or 

Email attorney Jacqueline Salcines directly at J.Salcines@salcineslaw.com

THE FIRST CONSULTATION IS ALWAYS FREE OF CHARGE.

TRUST |  COMMITMENT  | RESULTS

Jacqueline A. Salcines

Jacqueline A. Salcines

JACQUELINE A. SALCINES, ESQ.
706 S. DIXIE HIGHWAY
SECOND FLOOR
CORAL GABLES, FLORIDA 33146
TEL: 305 | 669 | 5280
DIRECT EMAIL:  J.SALCINES@SALCINESLAW.COM