REAL ESTATE CORNER
Florida Real Property and Business Litigation Report ( Continued )
MANUEL FARACH
Mich Auto Sales Inc . v . 14004 NW 19th Avenue , LLC , Case No . 3D22-0954 ( Fla . 3d DCA 2022 ) A trial court has no jurisdiction to amend an eviction final judgment after the rehearing period has ended .
Perera v . Genovese , Case Nos . 4D21-2060 & 4D21-2755 ( Fla . 4th DCA 2022 ). A court that finds an arbitrator exceeded their powers in the arbitration award has the discretion to vacate the entire award or only the part where the arbitrator exceeded their powers .
Massey v . Thomas , Case No . 4D21-2125 ( Fla . 4th DCA 2022 ). Florida Supreme Court Administrative Order AOSC20-23 does not override a trial court ’ s obligations to comply with Kozel v . Ostendorf , 629 So . 2d 817 ( Fla . 1993 ) ( establishes the process which a trial court must follow to dismiss a case as a sanction for failure to adhere to a deadline ).
Deutsche Bank National Trust Company v . Russell , Case No . 1D21-1552 ( Fla . 1st DCA 2022 ). A foreclosing lender may prove standing through a Pooling Service Agreement , and minor failures to comply under the Agreement do not impact standing .
Columbus Apartments , LLC v . MJM Structural Corp ., Case No . 3D21-1999 ( Fla . 3d DCA 2022 ). Florida Rule of Civil Procedure 1.540 is a basis for vacating a foreclosure sale when contesting the underlying foreclosure judgment but is not a basis , by itself , for vacating a foreclosure sale .
Sternberg v . RP & NP Corp ., Case No . 3D21- 2045 ( Fla . 3d DCA 2022 ). The following language in a residential lease provides a right of first refusal only during the “ Option Term ”: “ In addition , during the Option Term only ( if exercised ), Landlord shall have the right to list the Unit for sale , subject to a right to first refusal in favor of Tenant to match any offer made in connection therewith .”
Bimini Properties , Inc . v . Puff or Sip Hookah Lounge & Liquor Store , LLC , Case Nos . 3D21- 2350 & 3D21-2426 ( Fla . 3d DCA 2022 ). A trial court may not stay a writ of possession after a tenant ’ s failure to pay the determined rent into the registry of the court under Florida Statute section 83.232 ( 5 ).
Renda v . Price , Case No . 4D21-534 ( Fla . 4th DCA 2022 ). An equitable lien may be placed against homestead property that has been purchased with funds obtained by fraud , and the lien may be foreclosed .
AFC Franchising , LLC v . Purugganan , Case No . 20-13849 ( 11th Cir . 2022 ). A “ floating forum selection clause , i . e ., one that applies to a mutable location , is enforceable .
Victor Elias Photography , LLC v . Ice Portal , Inc ., Case No . 21−11892 ( 11th Cir . 2022 ). Copyright protection information which is embedded in a photograph ’ s metadata and is not readily apparent without several clicks cannot form the basis for claims of copyright infringement .
Sailboat Bend Sober Living , LLC v . Fort Lauderdale , Florida , Case No . 20-13444 ( 11th Cir . 2022 ). The application of non-discriminatory zoning and building ordinances to “ sober homes ” is not a violation of the Fair Housing Act , 42 U . S . C . § 3604 , and the Americans with Disabilities Act , 42 U . S . C . § 12132 .
Mintz Truppman , P . A . v . Cozen O ’ Connor ,
PLC , Case No . SC20-1225 ( Fla . 2022 ). A writ of prohibition is only appropriate to prohibit future actions , and cannot be used as an “ end-around ” around the limited number appealable non-final orders set forth in Florida Rule of Appellate Procedure 9.130 to correct past action .
PBCBA BAR BULLETIN 20
1944 Beach Boulevard , LLC v . Live Oak Banking Company , Case No . SC21-1717 ( Fla . 2022 ). Failure to correctly state a debtor ’ s name invalidates a filed UCC-1 financing statement ; there is no “ safe harbor ” under Florida Statute 679.5061 ( 3 ) as the result of the Florida Secured Transaction Registry not employing a statutorily-required “ standard search logic .”
In Re : Amendments to Florida Rules of Civil Procedure 1.530 And 1.535 , Case No . SC22-115 ( Fla . 2022 ). Florida Rule of Civil Procedure 1.530 is amended to state the deadline to file a Motion for New Trial or Rehearing runs “ 15 days after the date of filing of the judgment ,” and the text of Florida Rule of Civil Procedure 1.535 is moved to Rule 1.530 as new subdivision ( h ) while Rule 1.535 is deleted .
Kim v . Galasso , Case No . 2D20-3313 ( Fla . 2d DCA 2022 ). Trees are generally considered part of the realty and not personalty ; any contract taking planted trees out of the general rule must satisfy the statute of frauds and furthermore must clearly show an intent the trees be personal property .
Perez v . The Estate of Ofelia Reitman , Case No . 3D21-1104 ( Fla . 3d DCA 2022 ). A trial court is required by Florida Statute section 45.032 ( 3 )( b ) to set an evidentiary hearing to determine entitlement to surplus foreclosure sale proceeds if - prior to the date the clerk reports the surplus as unclaimed - any person other than the owner of record A trial court is required by Florida Statute section 45.032 ( 3 )( b ) to set an evidentiary hearing to determine entitlement to surplus foreclosure sale proceeds if - prior to the date the clerk reports the surplus as unclaimed - any person other than the owner of record claims an interest in the proceeds or the owner of record files a claim for the surplus but acknowledges there are others that may be entitled .