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. PBCBA BAR BULLETIN 24