Real Estate Cases


1. JUDGMENTS & LIENS

A. Five-Year Limitation Applied to Federal Judgment. An action brought in a Florida federal district court to enforce a district court judgment entered earlier in the same court is governed by the five-year limitations period of Sec. 95.11(1), F.S., not the 20-year limitations period of Sec. 95.11(1), F.S. Balfour Beatty Bahamas, Ltd. v. Boca Raton Millwork, Inc., 217 B.R. 339 (S.D. Fla. 1998), rev’d, Case No. 98-4195, 170 F.3d 1048 (11th Cir. 1999), cert. Den., 2000 WL 286674 (2000).

B. Judgment Lien Avoided on Entirety Property by Bankruptcy Court. A judgment lien against a husband does not attach to property that he owns with his wife as an estate by the entirety. In re Banderas, 236 B.R. 849 (Bkrtcy. M.D. Fla. 1999).

C. Foreign Limitation Statute Applied to Domesticated Judgment. Under Florida Enforcement of Foreign Judgments Act, a foreign judgment domesticated in Florida is subject to the foreign state’s statute of limitations and not the limitations period for Florida judgments. In re Tranter, 245 B.R. 419 (Bkrtcy. S.D. Fla. 2000).

D. Limitation of Registration of Foreign Country Judgments. Florida’s five-year statute of limitations directed at actions brought on judgments of foreign countries does not apply to the registration of a foreign judgment pursuant to the Uniform Foreign Money Judgments Recognition Act, but rather the applicable statute of limitations are the ones pertinent to Florida’s domestic judgments. Le Credit Lyonnais, S.A. v. Nadd, 741 So.2d 1165 (Fla. 5th DCA 1999).

E. Code Enforcement Lien Encumbers All Property of Violator. While a code enforcement board lien is unenforceable against the violator’s homestead property, the lien against the violator’s other property, including personal property, remains valid. Monroe County v. McCormick, 752 So.2d 1239 (Fla. 3d DCA 2000).

F. Dormant Foreign Judgment May Not Be Registered Under FEFJA. Under the Florida Enforcement of Foreign Judgments Act, a judgment creditor may not register a foreign judgment in Florida that is no longer enforceable where rendered and that has not been revived. Muka v. Horizon Financial Corp., 25 FLW D318 (Fla. 4th DCA 2000).

G. Notice Requirement for Code Enforcement Lien Foreclosure. Where a city had knowledge of the correct post office box number and correct residence address for property owners but failed to provide notice of a code enforcement board hearing to either correct address, it failed to comply with due process requirements of Sec. 162.12, F.S. Little v. City of Temple Terrace, 25 FLW D675 (Fla. 2d DCA 2000).


II. SHERIFF’S SALE

A. Perfecting of Lien Required Before Sheriff’s Sale. A judgment creditor must first perfect a lien against the lands of a judgment debtor before proceeding to have the sheriff levy and sell real property of the judgment debtor. Diaz v. Plumhoff, 742 So.2d 846 (Fla. 2d DCA 1999).

B. Sheriff’s Sale of Real Property Must Occur During Judgment’s Life. A sheriff’s deed is a legal nullity where the judgment lien expired before the sheriff held the execution sale. Betaco, Inc. v. Countrywide Home Loans, 752 So.2d 696 (Fla. 2d DCA 2000).

III. PROCESS & PROCEDURES

A. Federal Express Is Not Service of Process via Mail. Service of process by private courier service does not satisfy the statutory requirement that substituted service be made by registered mail. Federal Nat. Mortg. Ass’n. V. Fandino, 751 So.2d 752 (Fla. 3d DCA 2000).

B. Service of Process on Limited Partnership with Corporation as General Partner. In a suit against a limited partnership, when the general partner of the limited partnership is a corporation, the service of process should be made on the corporation’s officers or agents pursuant to Sec. 48.081, F.S. Baker v. Petway, 24 FLW D1995 (Fla. 1st DCA 1999).

C. Defective Construction Service Renders Judgment Only Voidable. The failure to strictly comply with the constructive service of process statutes renders the subsequent judgment voidable, not void. Reina v. Barnett Bank, N.A., 25 FLW D421 (Fla. 4th DCA 2000).

D. Judgment Held Valid Notwithstanding Defective Service. Where defendants were served by a process server not qualified in the county where defendants were served, the resulting judgment was voidable; however, because defendants failed to timely attack the judgment within one year after its rendition, the judgment was enforceable. Decker v. Kaplus, Case No. 5D99-2968 (Fla. 5th DCA, June 2, 2000).

IV. MORTGAGES

Tax-Free Exchange Agreement May Be Mortgage. A tax-free exchange agreement may be an agreement for deed under Sec. 697.01, F.S., and in effect a mortgage carrying all the burdens thereof, including the rules relating to foreclosure and the right of redemption. Bowman v. Saltsman, 736 So.2d 144 (Fla. 5th DCA 1999).


V. MORTGAGE FORECLOSURES

A. Bankruptcy Statutes Does Not Extend Mortgage Redemption Period. The Bankruptcy Statutes does not extend the time that a mortgagor has to redeem a mortgage property. In re Psychiatric Hospitals of Hernando, 243 B.R. 524 (Bkrtcy. M.D. Fla. 1999).

B. Recording Law Establishes Priority Between Mortgage and Subsequent Lien. Mere inaction by a mortgagee to foreclosure its mortgage until the payments were 17 months in default did not constitute a waiver of the priority of its mortgage over a subsequent lien. National Loan Investors, L.P. v. Burgher, 742 So.2d 406 (Fla. 4th DCA 1999).

C. Motion to Set Aside Foreclosure Sale Was Not Timely Filed. A mortgagee’s untimely motion to set aside a foreclosure sale did not relate back to the time of filing a motion by the mortgagee’s local agent who was not a party to the litigation and who did not have standing. Ryan v. Countrywide Home Loans, Inc., 743 So.2d 36 (Fla. 2d DCA 1999).

D. Foreclosure Fees Not Refundable. The clerk of the circuit court is not required to refund registry and sales fees to a successful bidder at a mortgage foreclosure sale where the mortgagor, prior to the sale and without written notice to the clerk, filed a suggestion of bankruptcy in federal court, requiring the sale to be later invalidated. Palm Beach Horizons, Inc. v. Washington Mutual Bank, 744 So.2d 1074 (Fla. 4th DCA 1999).

E. Deficiency Judgment Should Include Reduction for Delinquent Taxes. In calculating a deficiency judgment, the court should reduce the property’s fair market value by the amount of delinquent taxes. Edwards v. F.D.I.C., 746 So.2d 1157 (Fla. 4th DCA 1999).

F. Foreclosure Sale May Not Be Set Aside Where Bid Price Is Adequate. In order to vacate a foreclosure sale, the trial court must find: (1) that the foreclosure sale bid was grossly or startling inadequate and (2) that the inadequacy of the bid resulted from some mistake, fraud or other irregularity in the sale. Mody v. California Federal Bank, 747 So.2d 1016 (Fla. 3d DCA 1999).

G. Redemption Rights After Foreclosure of Omitted Junior Mortgagee. In a strict reforeclosure action against an omitted junior mortgagee, the amount required for the junior mortgagee to redeem is the amount he would have been required to pay had he elected to redeem promptly on the filing of the mortgage foreclosure complaint. Miami-Dade County v. Imagine Properties, 752 So.2d 129 (Fla. 3d DCA 2000).

H. Show Cause Statute Is Constitutional. Sec. 702.10 (2), F.S., which allows a commercial mortgagee to request a court order requiring that the mortgagor continue payments pending litigation, post bond, or relinquish possession of the property, is constitutional. Caple v. Tuttle’s Design-Build, Inc., 753 So.2d 49 (Fla. 2000).

I. Clerk’s Mistake at Foreclosure Sale. It was a gross abuse of discretion for a trial court to overrule an objection to a foreclosure sale, where the clerk had refused to accept the highest bid on the ground that the bidder tendered a law firm’s check rather than cash in the payment of the clerk’s fee and where the clerk had subsequently acknowledged that such a refusal was a violation of the written policy of the clerk’s office. Texas Commerce Bank National Association v. Nathanson, 25 FLW D6 (Fla. 4th DCA 1999).

IV. CONSTRUCTION LIENS

A. Failure to Serve Notice to Owner is Complete Defense. An owner may raise as a complete defense to the enforcement of a construction lien that the lien claimant materialman did not furnish a notice to owner even through the notice of commencement was signed by the general contractor rather than by the owner. Gulfside Properties Corp. v. Chapman Corp., 737 So.2d 604 (1st DCA 1999).

B. One Spouse May Bind Other Spouse Under Construction Lien Law. Where property is owned as tenants by the entirety, a notice of commencement signed by one spouse is sufficient to comply with the statutory requirements for a notice of commencement. Sasso Air Cond. v. United Comp. Lending, 742 So.2d 468 (Fla. 4th DCA 1999).

C. Construction Lien Must Be Based on Contract. A construction lien must be based on a contract, and a contract implied in law does not meet this requirement. CDS & Assocs. v. 1711 Donna Road Assocs., 743 So.2d 1223 (Fla. 4th DCA 1999).

D. Amount Required to Redeem After Foreclosure Judgment. A trial court may enter a subsequent amended final judgment of construction lien foreclosure to collect attorney’s fees after the owners have exercised their right of redemption as to the original final judgment, which liquidated principal and interest, but reserved jurisdiction over attorney’s fees and costs. Parsons v. Whitaker Plumbing, 751 So.2d 655 (Fla 4th DCA 1999).

VII. EMINENT DOMAIN

A. Developer Must Reasonably Consider Environment. Because a Florida developer purchased his property knowing that it would be subject to environmental regulation by federal and state authorities, it was not reasonable for him to expect that he would be able to build a luxury waterfront development without regard to the project’s impact on the environment. Good v. United States, 189 F.3d 1355 (Fed. Cir. 1999).

B. Income Stream Is Compensable Property Right. The right of a private country club to receive a stream of income from a monthly recreation fee assessed against the owner of a residential mobile home lot constitutes a property right compensable upon inverse condemnation by the county for use of that lot in public road-widening project. Palm Beach County v. Cove Club Investors, 692 So.2d 998 (Fla. 4th DCA 1997), aff’d. 734 So.2d 379 (Fla. 1999).

C. Denial of Building Permit Not A Taking. County did not effect a taking of property by denying owners’ request for a building permit based on their failure to incorporate design features that the Rate of Growth Ordinance sought to encourage. Burnham v. Monroe County, 738 So.2d 471 (Fla. 3d DCA 1999).

D. Redirection of Traffic Is Not a Taking. The redirection of traffic away from a commercial property did not amount to a taking. State Depart. of Transp. v. S.W. Anderson, 744 So.2d 1098 (Fla. 1st DCA 1999).

E. City’s Demolition of Building on Mortgaged Property. A city’s failure to give notice to a mortgagee of the city’s intent to demolish a building on the mortgaged property due to building code violations may be a violation of the United States Constitution in that a mortgagee’s lien is a compensable property interest. Nevada Interstate v. City of West Palm Beach, 747 So.2d 447 (Fla. 4th DCA 1999).

VIII. VENDOR & PURCHASER

A. No Misrepresentations Found in “As Is” Sale. A seller is not liable for failure to disclose known defects when the defects are readily observable or within the buyer’s ability to know or easily discover. Pressman v. Wolf, 732 So.2d 356 (Fla. 3d DCA 1999), rev. den., 744 So.2d 459 (Fla. 1999).

B. Failure to Disclose Latent Defects Under “As Is” Contract. Under an “as is” sales contract in which the buyers waived their right of inspection, the buyers may not sue the seller for fraud in the inducement for failure to disclose latent defects. Carrero v. Porterfield, 752 So.2d 699 (Fla. 2d DCA 2000).

C. Knowledge of Encumbrance Prior to Contract Not Deemed Waiver. Even though purchasers under a contract to purchase property may be on constructive notice of a title encumbrance at the time they signed the contract, they are not deemed to have waived objection to the encumbrance. Paletti v. Corbin, 742 So.2d 343 (Fla. 1st DCA 1999).

D. Rescission of Contract Abrogates All Provisions of Contract. Where a purchaser sought rescission of a contract of sale and purchase based on mutual mistake and prevails on that theory, the purchaser is not entitled to receive attorneys’ fees pursuant to a provision of the rescinded contract. Leo v. MacLeod, 752 So.2d 627 (Fla. 2d DCA 1999).

IX. LANDLORD & TENANT

A. Liability Under Lease for Contamination Cleanup. Where a lessee assigned the lease to a corporation, with the assignment allocating the responsibility for any contamination that occurred before the assignment to the individual and the responsibility for an contamination that occurred after the assignment to the corporation, the individual’s stipulation to the termination of the lease in an action brought by the lessor for termination of the lease for the lessee’s failure to eliminate the contamination was not dispositive of the issue of when the contamination occurred and who is responsible for the cleanup. Hughes v. Hughes Energy, Inc. 736 So.2d 101 (Fla. 5th DCA 1999).

B. Donut Shop Is Not Bagel Bakery for Lease Exclusive Clause. A proposed donut shop was not a “bagel bakery” under the exclusivity clause of a tenant’s commercial lease to sell bagels. LPI/Key West Assoc. v. Sarah Luna, Inc., 749 So.2d 564 (Fla. 3d DCA 2000).


C. Interpretation of Arbitration Clause in Lease. Although any doubts regarding the scope of an arbitration clause in a lease should be resolved in favor of arbitration, where the lease provision is not doubtful, arbitration should not be ordered. Ocwen Federal Bank v. LVWD, Ltd., 25 FLW D379 (Fla. 4th DCA 2000).

D. Oral Lease May Be Month-to-Month Tenancy at Will. An oral lease pursuant to which rent is payable monthly is deemed to be a month-to-month tenancy at will and such lease does not violate the statute of frauds merely because it continues in effect for more than a year. Mangum v. Susser, 25 FLW D1216 (Fla. 1st DCA 2000).

X. REFORMATION

A. Reformation Not Allowed Against BFP Without Notice of Error. Where purchasers of property took no steps to ascertain the boundaries of the property they were purchasing and where a search of the public records would not have revealed that the legal description in their deed did not correspond with the boundary monuments reflect the intention of the original grantors, the purchasers did not have notice sufficient to defeat a claim that they were bona fide purchasers without notice. Florida Masters Packing, Inc. v. Craig, 739 So.2d 1288 (Fla. 4th DCA 1999).

B. Presumption of Correctness Not Overcome in Reformation Action. A plaintiff must prove by clear and convincing evidence that a mutual mistake occurred to overcome the strong presumption that a deed expresses the intent of the parties. RIS v. Indian Spring Country Club, Inc., 747 So.2d 974 (Fla. 4th DCA 1999).

XI. EASEMENTS

A. Easement Holder Has Full Use of Entire Easement. Where a grant of easement is clear and unambiguous, the owner of the servient estate has no right to place obstructions across or within the easement to prevent the full use of the easement by the dominant estate owner. Entzminger v. Thornberry, 734 So.2d. 1114 (Fla. 2d DCA 1999).

B. MRTA May Eliminate Easement of Necessity. The Marketable Record Title Act may extinguish an otherwise valid claim of a common law way of necessity when such claim was not asserted within 30 years. H & F Land v. Panama City-Bay Co. Airport, 706 So.2d 327 (Fla. 1st DCA 1998), app’d, 736 So.2d 1167 (Fla. 1999).

C. Proof for Statutory Way of Necessity. The claimant of a statutory way of necessity over another property has the burden to prove that there is no common law way of necessity. Suwannee River Water Management District v. Price, 740 So.2d 46 (Fla. 1st DCA 1999).


D. Easement to Ocean Runs With Land. Where an easement for access to the ocean was granted to the owner and occupants of certain apartments, and the apartments were later torn down and a motel built in their place, the easement runs with the land and an injunction should be entered keeping the servient tenant from blocking the easement, although the servient tenant should have an opportunity to challenge the scope of the easement. Villa Riviera Club v. Dilesh Enterprises, 743 So.2d 1115 (Fla. 5th DCA 1999).

E. Easement is Not Title to Land. An easement is not title to land, but rather an intangible right to make use of property, and therefore an easement is not requisite title necessary for bringing a quieting suit. Gantt v. Riverbend Estates, Inc., 25 FLW D1038 (Fla. 2d DCA 2000).

XII. TAXATION

A. Challenge to Homestead Tax Exemption Denial. The removal of a homestead exemption on a taxpayer’s property is part of the “tax assessment” in the year for which the exemption was denied, and any challenge to that denial is barred 60 days after the date the assessment is certified for collection. Nickolits v. Ballinger, 736 So.2d 1253 (Fla. 4th DCA 1999).

B. Defense of Lack of Notice of Tax Sale by Lienholder. Where a lienholder’s name was not on a tax collector’s statement that an application for a tax deed has been made despite a duly recorded final judgment that bore the name and address of her attorney, the circuit court clerk did not have the duty to conduct an additional investigation to locate the lienholder in order to give notice of a tax deed sale. Bullock v. Houston Realty & Inv., Inc., 739 So.2d 1251 (Fla. 4th DCA 1999).

C. Doc Stamps on Deed to Correct Clerical Error. Where a husband and wife purchased a home, both signed the mortgage, but the wife’s name was inadvertently left off the deed, the Department of Revenue improperly made an additional assessment for documentary stamps based on the value of the mortgage on the residence upon the husband’s filing of a quitclaim deed of the property to himself and his wife. Department of Revenue v. Race, 743 So.2d 169 (Fla. 5th DCA 1999).

D. Doc Stamps on Exchange of Land for Partnership Interest. Where a limited partner transfers real property to the limited partnership in exchange for a partnership interest, the transfer is subject to documentary stamps based on the fair market value of the property. Muben-Lamar, L.P. v. Department of Revenue, 25 FLW D994 (Fla. 1st DCA 2000).

E. Notice Given for Tax Sales Upheld. The fact that the legal title holder of certain property had filed a change of address form with the property appraiser did not require the tax collector and clerk of the circuit court to deviate from the statutory mandate of sending a notice of a tax sale to the address of the title holder as listed on the last tax collector’s statement. Eurofund Forty-Six, Ltd. v. Terry, 25 FLW D1105 (Fla. 5th DCA, May 5, 2000).




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