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)