PBCBA BAR BULLETINS pbcba_bulletin_Sept. 2019 | Page 24

REAL ESTATE CORNER
Florida Real Property and Business Litigation Report
MANUEL FARACH
Lapciuc v. Lapciuc , Case No. 3D18-1804 (Fla.
3d DCA 2019).
A trial court should not determine what acts
constitute “commercial reasonableness”
in a settlement agreement without taking
evidence.
Dezer Intracoastal Mall, LLC v. Seahorse
Grill, LLC , Case No. 3D18-88 (Fla. 3d DCA
2019).
A lease rider which contains the following
phrase limits operating expense increases
to only three percent per year despite
contrary terms contained in main lease:
8. OPERATING EXPENSES / FIXED IN
CREASES: Notwithstanding anything to the
contrary contained in the Lease, Operating
Expenses (as the term is defined in Section
2.3 of the Lease) shall increase annually
during the Term by the fixed amount of
three percent (3%) per calendar year over
the Operating Expenses in effect for the im
mediately preceding calendar year, not
withstanding the actual amount of
Operating Expenses otherwise allocable to
the Leased Premises.
Davis v. OneWest Bank, FSB , Case No. 3D18-
493 (Fla. 3d DCA 2019).
The Third District re-affirms its holding in
OneWest Bank, FSB v. Palmero, 44 Fla. L.
Weekly D1049 (Fla. 3d DCA April 24, 2019)
(en banc), that a non-borrowing spouse
under a reverse mortgage is a “co-borrower”
and foreclosure cannot begin until both
spouses pass away.
The Burton Family Partnership v. Luani
Plaza, Inc. , Case No. 3D18-1935
Awarding fees for litigating the amount of
fees is proper when the applicable by-laws
of the real estate development provide
recovery of fees “for litigating the issue of
the amount of fees to be awarded” in both
trial and appellate proceedings.
Pier 1 Cruise Experts v. Revelex Corporation,
Case Nos. 17-13956; 17-15623 (11th Cir. 2019).
The Eleventh Circuit certifies to the Florida
Supreme Court the question whether self-
indemnification clauses are enforceable,
and if so, under what circumstances.
Hayslip v. U.S. Home Corporation , Case No.
2D17-4372 (Fla. 2d DCA 2019).
An arbitration provision in a deed runs with
the land and will force a subsequent owner
to arbitrate construction defect claims.
Grand Palace View, LLC v. 5 AIF Maple 2,
LLC , Case No. 3D18-2604 (Fla. 3d DCA 2019).
A foreclosing lender typically has no
right to possess the real property prior to
foreclosure.
a bid is too speculative and does not confer
standing.
Space Coast Credit Union v. Day , Case No.
3D19-689 (Fla. 3d DCA 2019).
A party that is the successful bidder at
foreclosure sale is not entitled to return
of his deposit, but instead Florida Statute
Flinn v. Doty , Case No. 4D18-1273 (Fla. 4th 45.031(3) requires the deposit first be applied
DCA 2019).
to the costs of re-advertising the sale and
A party that has elected foreclosure of a any excess be applied to the outstanding
claim through sale cannot then prosecute judgment.
a money judgment for amounts still owing
after foreclosure but must instead seek a Deutsche Bank National Trust Company
deficiency judgment.
v. Smith , Case No. 4D18-2265 (Fla. 4th DCA
2019).
Coastal Creek Condominium Association, A party that moves for involuntary
Inc. V. Fla Trust Services LLC , Case No. 1D18- dismissal “’admits the truth of all facts in
1457 (Fla. 1st DCA 2019).
evidence and every reasonable conclusion
Under the present (2017 and beyond) version or inference’ that can be drawn from the
of Florida Statute section 718.116(1)(a), the evidence favorable to the nonmoving party,”
present owner of a condominium unit is and thus an assignment of mortgage which
jointly and severally liable with the previous contains statements regarding the transfers
owner (other than the association it was an of notes are sufficient to establish standing.
owner) for unpaid assessments that came
due during the ownership of both; Aventura Rivera v. The Bank Of New York Mellon ,
Management, LLC v. Spiaggia Ocean Case No. 2D17-4417 (Fla. 2d DCA 2019).
Condominium Association, Inc., 105 So. 3d A witness who did not create certain
637 (Fla. 3d DCA 2013), is distinguished as business records may lay the predicate
it interpreted the 2013 version of the statute for the introduction of the records but
prior to its amendment in 2017.
only so long as the witness has sufficient
knowledge regarding how the records were
Rosen v. Harborside Suites, LLC, Case No. created or the records themselves.
3D16-2678 (Fla. 3d DCA 2018).
Upon rehearing, the Third District Heredia v. John Beach & Associates, Inc. ,
withdraws its previous opinion and holds Case No. 2D18-4127 (Fla. 2d DCA 2019).
the following language constitutes a release A contractor’s subcontractors performing
from a loan guarantee as additional acts, work on a construction site are entitled
e.g., approval of the delivered contracts by to “horizontal immunity” under worker’s
the lender, are not required before the lender compensation law.
is required to deliver a release:
City of Fort Lauderdale v. Hinton , Case No.
Notwithstanding anything to the contrary 4D18-2089 (Fla. 4th DCA 2019).
contained
herein,
upon
Borrower’s State and local government do not enjoy
satisfaction of the Pre-Sales Requirement in sovereign immunity from constitutional
accordance with the terms and conditions violation and inverse condemnation suits.
of the Agreement, Guarantor shall thereafter
be released from his obligations under this Collection and Recovery of Assets, Inc. v.
Guaranty with respect to matters occurring Patel , Case No. 5D18-3154 (Fla. 5th DCA 2019).
from and after the date of such release . . .
Florida Rule of Civil Procedure 1.540(b)(5)
relieves a defendant from collection under
Liebman v. The City of Miami , Case No. a joint and several guarantee when the
3D18-812 (Fla. 3d DCA 2019).
party seeking to collect on the guarantee
A party complaining of government zoning is a former co-guarantor who assigned
and development action must have special the guarantee judgment to a solely held
injury apart from citizens at large, and corporation and then attempted to use the
alleging that he would have had submitted corporation to collect the entire amount of
the guarantee from his former co-guarantor.
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