PBCBA BAR BULLETINS pbcba_bulletin_February 2019 | Page 19

REAL ESTATE C o r n e r
Florida Real Property and Business Litigation Report
MANNY FARACH
Weyerhaeuser Co. v. United States Fish and
Wildlife Service, Case No. No. 17–71 (2018).
The designation by the U.S. Fish and
Wildlife Service of an area as a “critical
habitat” for an endangered species requires
that the property be presently “habitable”
for the species.
Ham v. Portfolio Recovery Associates, LLC,
Case No. 1D17-3112 (Fla. 1st DCA 2018).
An action for account stated is not “an
action to enforce a contract,” so a prevailing
party is in such a suit not entitled to the
reciprocity benefits of Florida Statute
section 57.105(7).
D & E Real Estate, LLC v. Vitto, Case No.
3D18-376 (Fla. 3d DCA 2018).
Failure to deliver marketable title under
paragraph 15(b) of the FAR-Bar form
contract can constitute a breach of the
contract entitling a buyer to seek specific
performance:
SELLER DEFAULT: If for any reason other
than failure of Seller to make Seller’s title
marketable after reasonable diligent effort,
Seller fails, neglects or refuses to perform
Seller’s obligations under this Contract,
Buyer may elect to receive return of Buyer’s
Deposit without thereby waiving any action
for damages resulting from Seller’s breach
and, pursuant to Paragraph 16, may seek
to recover such damages or seek specific
performance.
Charterhouse Associates, Ltd., Inc. v.
Valencia Reserve Homeowners Association,
Inc., Case No. 4D17-2640 (Fla. 4th DCA 2018).
A personal trainer invited by a homeowner
to train him at the clubhouse owned and
maintained by the homeowner’s association
is an invitee under Florida law and is not
a violation of the association restrictive
covenants when the covenant permit
owner’s invitees onto the property; use of
the “economic benefit” test to determine the
legal status of the invitee on the property is
rejected.
Greenshields v. Greenshields, Case Nos.
5D18-400 & 5D18-1218 (Fla. 5th DCA 2018).
A court order requiring that certain
disputed proceeds from a real estate
closing be held in escrow and not disbursed
to seller amounts to a temporary injunction,
notwithstanding the disbursement of the Rosen v. Harborside Suites, LLC, Case No.
funds were restricted by an agreement.
3D16-2678 (Fla. 3d DCA 2018).
The following language does not constitute
Transcontinental Gas Pipe Line Company, an “automatic release” from a guarantee
LLC v. 6.04 Acres, More or Less, Over of a loan as additional acts, e.g., approval
Parcel(s) of Land of Approximately 1.21 of the delivered contracts by the lender,
Acres, Case No. 16-17503 (11th Cir. 2018).
are required before a subsequent written
A trial court may issue a preliminary release is delivered:
injunction to a pipeline company to allow Notwithstanding anything to the contrary
access to a landowner’s property before the contained
herein,
upon
Borrower’s
conclusion of condemnation proceedings satisfaction of the Pre-Sales Requirement in
so long as the pipeline company’s right accordance with the terms and conditions
to condemn the property has been finally of the Agreement, Guarantor shall thereafter
determined.
be released from his obligations under this
Guaranty with respect to matters occurring
In re: Standard Jury Instructions in Contract from and after the date of such release . . .
and Business Cases—2018 Report, Case No.
SC18-867 (Fla. 2018).
Rodriguez V. Wilmington Savings Fund
Standard jury instructions and verdict Society, FSB, Case No. 4D18-310 (Fla. 4th
forms for use in commercial cases are DCA 2018).
adopted by the Florida Supreme Court.
A voluntary dismissal by a lender plaintiff
renders the holding of Nationstar Mortg.
City of Miami v. Airbnb, Inc., Case No. 3D17- LLC v. Glass, 219 So. 3d 896, 899 (Fla. 4th DCA
1213 (Fla. 3d DCA 2018).
2017), review granted, Glass v. Nationstar
Florida Statute section 509.032(7)(b) (“A Mortg.,LLC, 2018 WL 2069328 (Fla. Feb.
local law, ordinance, or regulation may 13, 2018), inapplicable and subjects the
not prohibit vacation rentals or regulate dismissing plaintiff to a claim for attorney’s
the duration or frequency of rental of fees from the borrower.
vacation rentals.”) invalidates zoning laws
prohibiting transient rentals which were Trial Practices, Inc. v. Hahn Loeser & Parks,
not in place as of June 1, 2001.
LLP, Case No. SC17-2058 (Fla. 2018).
The Florida Supreme Court rules that “Rule
Sayles v. Nationstar Mortgage, LLC, Case 4-3.4(b) of the Rules Regulating the Florida
No. 4D17-1324 (Fla. 4th DCA 2018).
Bar permits a party to pay a fact witness
The Fourth District adopts In re Failla, 838 for the witness’s assistance with case and
F.3d 1170 (11th Cir. 2016), and distinguishes discovery preparation that is directly related
Fischer v. HSBC Bank USA, N.A., 2018 WL to the witness preparing for, attending, or
3320860 at *2 (Fla. 2d DCA July 6, 2018).
testifying at proceedings.”
Seaspray Resort, Ltd, v. UCF I Trust 1, Case
No. 4D18-991 (Fla. 4th DCA 2018).
Hotel revenue can be “rents” for the
purposes of an Assignment of Rents under
Florida Statute section 697.07 and thus may
sequestered in the Court Registry; Orlando
Hyatt Associates, Ltd. v. FDIC, 629 So. 2d 975
(Fla. 5th DCA 1993), is distinguished.
City of Jacksonville Beach v. BCEL 4, LLC,
Case No. 1D18-1280 (Fla. 1st DCA 2018).
Mandamus relief cannot be granted to
compel a local government to approve or
deny a concept plan for plat application
unless the applicant proves the local
government’s decision is purely ministerial.
PBCBA BAR BULLETIN 19
D.R. Horton, Inc. – Jacksonville v. Heron’s
Landing Condominium Association of
Jacksonville, Inc., Case No. 1d17-1941 (Fla.
1st DCA 2018).
The violation of building codes is sufficient
“damages” to sustain a verdict for violation
of Florida Statutes section 553.84.
Bailey v. James S. St. Louis, D.O., Case No.
2D17-895 (Fla. 2d DCA 2018).
A claim of disgorgement of wrongful gains
is a remedy intended to deter wrongdoers
and is not based on lost profits, i.e., a
successful clamant need not prove lost
profits to prevail.
(Con’t. on pg 19)