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Real Estate Case Law Updates

Published on: January 17, 2014 | by ESQ.title

By: Daniel Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

COURT APPOINTED RECEIVER OVER CONDO ASSOCIATION

Granada Lakes Villas Condo Ass’n, Inc. v. Metro-Dade Investments Co.,

74 So.3d 593 (Fla. 2d DCA 2011), app’d 38 Fla. L. Weekly S777 (Fla. 2013)

The developer of a subdivision of a larger condominium complex and the master property owners association for the development (owners association) sued the condominium association (condo association), alleging that the condo association failed to pay the developer and the owners association related expenses for common areas after collecting fees and assessments collected from owners of the condominium units. The developer subsequently filed an emergency motion for the appointment of a receiver over the condo association in order to facilitate the collection of the fees and assessments and to perform a proper accounting. The trial court concluded that it lacked the statutory authority to appoint a receiver in this instance.

On appeal the Second District Court reversed the trial court’s judgment, holding that the trial court erred as a matter of law because its right to appoint a receiver in this case was inherent in a court of equity, not a statutorily created right. The Supreme Court approved the appellate court’s decision, holding that a court’s inherent equitable power to appoint a receiver over a non-profit condominium association like the condo association was not limited to certain statutorily enumerated circumstances.

SERVICEMEMBERS CIVIL RELIEF ACT

Higgins v. Timber Springs Homeowners, 38 Fla. L. Weekly D2274 (Fla. 5th DCA 2013)

A homeowners association sued to foreclose on a lien in the amount of $363.33 for unpaid homeowner’s fees. The homeowner wrote three letters to the judge informing him that the homeowner was serving in the United States Army. One of the letters enclosed orders requiring the homeowner to be in Pennsylvania two weeks before the hearing on the association’s motion for summary judgment. Nevertheless, the trial court granted the motion for summary judgment, entered final judgment of foreclosure, and denied the homeowner’s motion to vacate the final judgment of foreclosure.

2013 Legislative Changes to Florida’s Condominium Law

Published on: December 2, 2013 | by ESQ.title

By: Daniel Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Florida’s condominium laws change frequently and affect hundreds of thousands of unit owners in the process. During Florida’s last legislative session, the legislature enacted a number of changes to Chapter 718, Florida Statutes (Florida’s Condominium Law). The highlights of the 2013 amendments to Florida’s Condominium Law are summarized below:

Elevator Retrofitting: Associations do not have to involuntarily retrofit elevators pursuant to local ordinances unless their building’s elevator is replaced or requires a major modification.

Association Acquisition of Lands of Recreational Leases: Associations can now upon a vote of, or written consent by, a majority of the total voting interests or as authorized by the declaration as provided in s. 718.113, acquire lands of recreational leases.

“Insurable Event”: as defined in s. 718.111(11), has been clarified to include damage occurring to a portion of the condominium property for which the unit owner has responsibility.

Condo & HOA Disputes

Published on: November 19, 2013 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Condominiums offer a long list of benefits to those who opt to reside in them. Condominium unit owners have the advantage of owning property without the hassle of property maintenance, repairs, and security concerns. Condos are very popular in the city for practical purposes and many times can be cheaper than a single-family home. It is no wonder why there is a high-rise residential structure being constructed or about to open soon in almost any prime location in the Palm Beach, Miami, and Broward areas.

Construction Disputes & The Doctrine of Substantial Performance

Published on: October 7, 2013 | by ESQ.title

By: Dan Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

As the South Florida real estate market continues to heat up, construction disputes are once again becoming a common occurrence in Miami-Dade, Broward and Palm Beach County.

The Doctrine of Substantial Performance

While a party’s legal rights in a construction dispute are governed by the operative contract documents, they are also governed by the doctrine of substantial performance or substantial completion. Florida courts have defined substantial performance as that performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the contractor the full contract price subject to the client’s right to recover whatever damages they may have suffered because of the contractor’s failure to render full performance, i.e. complete the construction job.

According to Florida law, under the doctrine of substantial performance, the contractor has the right to recover the contract price from the client; however, the client also has the right to recover any damages caused by the contractor’s failure to render full performance. Sometimes, the offset damages that the client is entitled to because construction was not completed end up exceeding the contract price that the contractor is entitled to.

Standard Florida Real Estate Contract (Part 2 of 2)

Published on: September 26, 2013 | by ESQ.title

By: Dan Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Here is Part 2 of the new FAR-BAR Contract blog post:

Buyer Closing Costs

Paragraph 9(b) offers a list of closing costs to be paid by the buyer. The owner’s title policy premium has been added as a bullet point because buyers have been paying this cost when 9(c)(iii) has been checked.

Under the contract options of paragraphs 9(c)(i) and (ii), the owner’s policy and charges will now also include a municipal lien search.

If paragraph 9(c)(iii) (the Miami-Dade or Broward County provision is selected) a municipal lien search has already been included.

Flood Zone and Elevation Certification

Paragraph 10(d) now includes a blank space where the parties can insert the amount of time a buyer has in which to terminate the contract for flood zone related reasons. If the blank line is not filled in, the time frame defaults to 20 days from the contract’s effective date

In addition, a disclosure has been added to Paragraph 10(d). In some cases, a buyer will have to pay actuarial rates for flood coverage that could be notably higher than the seller was paying. The disclosure explains this possibility and the type of buyers that could be affected by the change.

Finally, the disclosure now informs the buyer that a new elevation certificate may be necessary.

Standard Florida Real Estate Contract (Part 1 of 2)

Published on: September 14, 2013 | by ESQ.title

By: Dan Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

The Florida BAR and Florida Association of Realtors recently adopted a new standard real estate contract. Because the new “FAR-BAR” contract will control the majority of residential real estate transactions in Florida, it is important to understand what amendments were made. The following is not an exhaustive list of differences between the old and new FAR-BAR contract, but summarizes some of the major changes:

Personal Property

The Check Boxes in Paragraph 1(d) were removed. To simplify the contract three items were added to the list of items transferred by the seller at the time of sale: (1) refrigerators, (2) smoke detectors; and (3) storm shutters. If the buyer and seller want to include additional items of personal property to be transferred to the buyer those items can be inserted at the bottom of Paragraph 1(d).

Is a Verbal Option to Purchase Real Estate in Florida Enforceable?

Published on: September 12, 2013 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Consider a scenario where you have been leasing a residential property in Miami on a month-to-month basis for a little over a year but would like the eventual opportunity to purchase the property. Over the course of several lengthy conversations between you (the tenant) and the property owner (the landlord), the landlord ultimately agrees to give you the exclusive option to purchase the property once you resolve some old credit issues associated with a prior foreclosure. After your landlord gives you at least two verbal assurances in one week alone that you have an option to purchase the property and you shake hands on the agreement, you believe that the “deal is done.” However, after searching on Zillow one week later, you discover that your landlord has listed your property for sale with a broker. You immediately contact the listing broker and are told that the property is now under contract for sale to someone else and that you have one month to leave.

What are your legal rights in this situation? Can you sue your landlord to enforce the verbal option agreement that you accepted? Do you really only have one month left before you have to leave when you have lived at the property for over a year? Sadly, the answer to all of these questions is that you have no right to purchase the property or legal recourse against your landlord. To make matters worse, it’s also true that you have no legal right to stay in the property for anything longer than the thirty days that the landlord provided. Here is why, and here is how to prevent this tragic situation from playing out in the first place:

Is a New Owner Responsible for Condo or HOA Liens After Buying a Foreclosure in Miami or Broward County?

Published on: September 1, 2013 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Given that there are literally tens of thousands of homeowners and condominium associations in South Florida, it is no wonder that purchasers of foreclosure properties in Miami-Dade and Broward County frequently have questions about whether they are liable for past due homeowners or condominium assessments after purchasing property at a foreclosure sale. Once the initial excitement of the new purchase wears off, foreclosure purchasers frequently find themselves the target of associations seeking to collect past due assessments owed by the previous homeowner.

When confronted with this scenario, new property owners often recoil at the notion that they are responsible for the past due assessments: “What do you mean I owe the association $10,000 in back assessments, I just bought the property at a foreclosure sale free and clear last week? Those fees are the responsibility of the prior owner, not me!” Although this reaction is understandable, it is only partially correct.

Miami Dade Judges Expediting Residential Foreclosure Cases

Published on: August 4, 2013 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

According to just released statistics, judges in Miami-Dade County have been processing residential foreclosure cases twice as fast as judges in Broward County. While Miami-Dade has South Florida’s largest number of foreclosures, the latest plan in place in Miami-Dade calls for all residential foreclosure cases to be cleared by 2016. Paving the way for the fast foreclosure processing times are a set of newly hired magistrate judges and increased funding from the state in the tune of $25 million dollars.

Broward County is also stepping up its efforts to clear the foreclosure backlog. With the newly freed up money from the Florida Legislature, Broward County is in the process of funding the equivalent of three senior judges, two additional general magistrates, 18 case managers and six secretaries, all of whom will be devoted to processing foreclosure cases for the next year and half.

According to the forecasts, Florida will face 680,000 new foreclosure cases between now and 2016. The majority of these foreclosure cases will be filed in Miami-Dade, Broward County, and Palm Beach County. Obviously, the number of foreclosure cases in these counties is already staggering. For instance, in Broward County alone, there are over 40,000 cases being prosecuted by lenders. Whereas in Miami-Dade, there is a current estimated backlog of 48,000 cases. With numbers like these, Palm Beach County’s estimated 9,000 residential foreclosure cases looks miniscule, however, those cases definitely take a toll on a county that was previously unaccustomed to massive case loads.