Real Property Cases

June 2023

The Sixth District, in Pelleschi v. Pocci, allowed a fraudulent transfer claim to proceed against a trust because the trust had failed to establish that it was the owner of the property and that the property was homestead at the time of the transfer.

In Salyer v. Tower Hill Select, the Fifth District confirmed that an owner does not lose standing to sue a property insurer by assigning only a limited portion of their rights to a contractor.

May 2023

In American Automobile Ins. Co. v. FDH Infrastructure Services, LLC, the Third District held that an insurer's subgrogation claims against a design firm based on its assessment of the ability of an existing tower to support a new antenna were subject to the four-year statute of limitations for construction claims, not the two-year professional malpractice statute.

The Third District affirmed a trial court's denial of an injunction in McCormick Properties v. SoMi Homes, holding that the defendant's landscaping of a publicly-dedicated swale area was not inconsistent with the dedication in the recorded plat.In Positano Place v. Empire Indemnity, the 11th Circuit held that a trial court order compelling a property insurance appraisal process is an interlocutory order not immediately appealable.

In SFR v. Tower Hill, the Sixth District ruled that, under the particular language of its policy, a homeowner's insurer bore the initial burden to prove the amount of depreciation for purposes of calculating a loss. Also, Judge Cohen writes a concurrence emphasizing that the "broad evidence rule" applies to homeowner's in such cases.

The Sixth District reversed summary judgment in Bensen v. Privilege Underwriters, holding that timely notice under the policy was a fact issue, even though the claim for hurricane roof damage was reported two years after the hurricane - the question is, whether under all the circumstances, a reasonable insured would have realized they had a claim.The US Supreme Court held in Tyler v Hennepin County, that a taxpayer could assert a takings claim against a county that sold the taxpayer's property at auction to recover back taxes, but did not provide a process for the taxpayer to recover the excess proceeds over and above the tax debt.

In National Equity v. Imperial Fund, the Fourth District held that the trial court in a foreclosure was required to determine claims to surplus funds remaining after sale, and departed from the essential requirements of law by staying the action pending a resolution of the dispute that was not being sought in any other forum.

The Third District affirmed a trial court's denial of prejudgment interest in Hawks Nest Condominium v. Westchester, upholding an award of fees and costs because a property insurer's delayed response required the insured to file a petition to compel appraisal, but that prejudgment interest should not be awarded because the insurer never actually denied the claim.

The Fifth DCA delivered an interesting real property case in Babcock v. Golden Acres South, LLC - owner sues tenant for unlawful detainer in county court; tenant counterclaims, asserting an equitable interest in the property - county court loses jurisdiction to the circuit court, because ejectment is now the form of action.

In Vereit Real Estate, LP v. Fitness International, LLC, the Third reversed a summary judgment order that had ruled that a commercial tenant was relieved of its rent obligations by a force majeure clause in its lease for the period of time that COVID-19 orders kept the tenant's business closed.

f Jupiter Island, the Fourth certified a question of great public importance to the Florida Supreme Court: whether cities must re-advertise a proposed ordinance if its adoption is postponed from the meeting that was initially advertised.

Editorial note: this case is very important to municipalities around the state, because the earlier merits opinion invalidating an ordinance on this basis threatens the validity of an unknowable number of ordinances around the state, since it was apparently inconsistent with the usual practice.

In Fitness International, LLC v. 93 FLRPT, LLC, the Second held that neither its lease nor common law provided for an abatement of rent for a lessee whose business was impaired by COVID-19 restrictions.

In Westpark Preserve Homeowner's Assoc., Inc. v. Pulte Home Corp., the Second held that, where a builder owns property on which it makes improvements, the section 95.11(3)(c) statute of repose runs from the issuance of the certificate of occupancy, not from the sale of the property to the next owner.

In Grnja v. People's Trust Ins. Co., the Fourth held that a property insurer does not waive its right to compel appraisal by sending a notice of the insured's right to mediation too early, as opposed to too late.

In Wright v. Regions Bank, the Fourth held that 19 days was not an undue delay in moving to set aside a default judgment and that accidentally filing an answer under the wrong case number was excusable neglect.

The Fourth reminded us that a contract with an adequate merger clause will bar an action for alleged fraudulent inducement based on inconsistent pre-contract statements in Funderdome, LLC v. Woolbright Development, Inc., in which a commercial tenant sued a leasing agent for allegedly misrepresenting the adequacy of parking.

The Eleventh Circuit affirmed summary judgment against a "chronic nuisance" hotel that sued the city on First and Fourteenth Amendment claims in Mata Chorwadi, Inc. v. City of Boynton Beach.

In Ivey v. Ivey, the Sixth denied certiorari, holding that post-judgment remedies would be available on a trial court's order requiring a party to post a lis pendens bond.

April 2023

The Fourth issued Thayer v. Hawthorn, holding that an owner did not waive their homestead rights by deeding the property to themself and their spouse as part of an estate plan. I like opinions like this one, because homestead rights are important to a lot of Floridians and so I generally think they should be easier to claim and harder to waive.

Editorial note: where it doesn't create ambiguity, I try to use gender-neutral pronouns. If gender isn't directly relevant to what's being said, why mention it? For those who say "they" is a plural pronoun, I say this: all words are made up - it's going to be alright.

In Citizens Prop. Ins. Corp. v. Hernandez, the Fourth reversed a JNOV, despite the trial court's concern that a property insurer's counsel had swayed a jury with improper argument of fraud on the part of the homeowner.

In Jones v. Reid, the Third reversed a trial court's final judgment that had summarily evicted Section 8 tenants, despite their unadjudicated answer and defenses alleging retaliatory eviction

In Furst v. Rebholz, the Florida Supreme Court held that giving a tenant exclusive use of a portion of your homestead by renting a room, you may lose at least a portion of your homestead tax exemption.

The First and Fourth issued opinions today. In Weisblat v. Feldman, the Fourth held that a property owner can convert a joint tenancy into a tenancy in common without using the old formality of a so-called "straw man" conveyance. I think this is a good result, because doing away with old formalities that no longer serve a purpose is helpful - it makes it easier for everyone to understand and comply with the law. 

In Johnson v. Bank of America, the First affirmed the creation of an equitable lien to prevent unjust enrichment. Sometimes, equitable liens are the only way to fairly manage different interests in real property. I like to see our Circuit Courts get them right and our District Courts affirm them. But let me disclose my own bias on this one: I've worked with counsel for one of the parties and enjoy seeing them do well.

In Vertex Development, LLC v. Pinellas County, the Middle District granted summary judgment to a company that sought to build a cell tower disguised as a 120 cross on church property in Largo, after public comments had caused the zoning board to deny them a permit.

In Hogg v. Villages of Bloomingdale Homeowners Assoc., Inc., the Second held that actions to reform a written instrument are subject to a five-year statute of limitations.

In S and A Property Investment Services, LLC v. Garcia, the Third held that the tax increase cap on real property is lost when spouses who are tenants by the entirities transfer ownership of non-homestead property to an LLC they own.

The third held in Parisi v. Kingston that a power of attorney executed outside the United States must strictly comply with the requirement of two subscribing witnesses in order to be validly used to convey real property.

In Sage v. Pahlavi, the Third held that a reference to a defect in the sellers' property disclosure form barred the buyer's fraudulent nondisclosure claim under Johnson v. Davis.

The Fourth held, in Destiny Fulfilled Outreach Ministries, Inc. v. Investments SWK, LLC, that the commercial eviction statute does not, by itself, create a basis for an attorneys' fee award.

In Dimauro v. Martin, the Fourth held that the mutuality of remedy requirement for contract formation does not require each party to have identical remedies against the other.

February 2023

The Third issued AFP 103 Corp. v. Common Wealth Trust Services, LLC, which I won't comment on at the moment, but you should read. This one will be much-discussed by condominium lawyers and the title insurance industry. If you're a lawyer, now would be a good time to join RPPTL - you're in the title industry, now would be a good time to join the FLTA.

Editorial note: I'll try to remember to disclose when I may be biased. It's only fair - these are my personal opinions, not legal opinions.

The First, Third, and Fourth Districts issued opinions today. In Sutton v. Wilmington Trust, N.A., the Third said any equitable factor can support setting aside a foreclosure sale. I'm of two minds when this happens: on the one hand, important transactions like foreclosure sales should be reliable and final whenever possible, because it's good for business; on the other hand, I'm generally a fan of courts using their equitable powers when appropriate, because fairness is good for everyone. 

In Risman v. Seaside Villas Condominium Assoc., the Third considered a condominium declaration provision that gave the association "conclusive" power to decide some disputed issues - interesting stuff. 

The Fourth issued a lengthy and fascinating new opinion on rehearing in Citizens For Responsible Development, Inc. v. The City of Dania Beach, addressing questions of legal standing to challenge zoning ordinances and development agreements - we should all read this one.