REAL ESTATE CORNER
REAL ESTATE CORNER
Florida Real Property and Business Litigation Report
MANUEL FARACH
Westpark Preserve Homeowners Association , Inc . v . Pulte Home Corporation , Case No . 2D21-2084 ( Fla . 2d DCA 2023 ). The phrase “ the date of actual possession by the owner ” in Florida Statute section 95.11 ( 3 )( c ) ( Florida ’ s construction statute of repose ) does not mean the owner after transfer from the builder .
Fitness International , LLC v . 93 FLRPT ,
LLC , Case No . 2D22-1182 ( Fla . 2d DCA 2023 ). The following language in a commercial lease does not constitute a “ warranty ” that requires refund of rents paid due to governmental required pandemic closings , and closing of the facility due to governmental laws did not violate the force majeure provisions nor constitute impossibility and impracticability under the lease : 1.9 PRIMARY USES . The " Primary Uses " of the Building shall be for the operation of a full service health club and fitness facility which may include , without limitation , weight and aerobic training , exercise dancing , yoga , Pilates , Zumba , racquetball , personal training , health and fitness related programs , free weights , spinning / cycling , boxing , basketball , swimming pool , swim lessons , racquetball lessons , sauna and whirlpool facilities . . . . Landlord hereby represents , warrants and covenants to Tenant that Tenant ' s operation of business from the Building in accordance with this Lease for a health club and fitness facility . . . does not and will not violate any agreements respecting exclusive use rights or restrictions on use within the Project or any portion thereof . . . . Tenant shall have the right throughout the Term to operate the Building , or any portion thereof , for uses permitted under this Lease .
Case No . 2D22-3150 ( Fla . 2d DCA 2023 ). A defendant cannot object to a voluntary dismissal on the basis of “ surprise ,” defendant must seek relief in a Florida Rule of Civil Procedure 1.540 ( b ) motion by proving fraud on the court and that the voluntary dismissal resulted in affirmative relief to the plaintiff which had an adverse impact on the defendant .
Vereit Real Estate , L . P . v . Fitness International , LLC , Case No . 3D22-1273 ( Fla . 3d DCA 2023 ). Neither a force majeure clause nor the doctrines of impossibility of performance , impracticability of performance , and frustration of purpose relieve a tenant from paying rent during government directed closures .
Imperial Fund Trust 2019-I , Case No . 4D22- 1683 ( Fla . 4th DCA 2023 ). Certiorari will lie to compel a trial court to vacate its imposed stay and to decide entitlement to surplus foreclosure funds under Florida Statute 45.032 between two competing entities .
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Pet Supermarket , Inc . v . Eldridge , Case No . 3D21-1174 ( Fla . 3d DCA 2023 ). Florida courts examine injury , causation , and redressability to determine whether the plaintiff has standing , and the plaintiff must identify an actual or imminent injury that is concrete , distinct , and palpable in order to have standing .
WLT Software Enterprises , Inc . v . Brooks , National Equity Recovery Services , Inc . v .