REAL PROPERTY UPDATE

  • Restrictive Covenants: restrictive covenant providing that an ostentatious site feature, which “may be offensive to adjacent neighbors is unacceptable” was improperly interpreted by architectural review board as unequivocally giving “adjacent neighbors” a right to veto – Leamer v. White and Omni Amelia Island LLC, No. 1D13-4573 (Fla. 1st DCA January 27, 2015) (reversed part; affirmed in part)
  • Foreclosure/Hearsay: trial court erred in admitting payment history into evidence over defendant's hearsay objection where witness on whom successor plaintiff relied to establish foundation for admission of payment history was not shown to have personal knowledge about how predecessors had handled loan before plaintiff acquired it – Holt v. Calchas, LLC, No. 4D13-2101 (Fla. 4th DCA January 28, 2015) (reversed and remanded)
  • Foreclosure: error to grant bank's motion to vacate final summary judgment of foreclosure, sale, and certificate of title based on incorrect legal description, where motion was filed over three years after final summary judgment was entered –Epstein v. Bank of America, No. 4D13-4066 (Fla. 4th DCA January 28, 2015) (reversed and remanded)
  • Foreclosure: error to summarily grant motion for involuntary dismissal before plaintiff finished presenting its case –Wachovia v. Montes, No. 4D13-3654 (Fla. 4th DCA January 28, 2015) (reversed and remanded)
  • Acceleration/Foreclosure: notice saying “we shall accelerate” merely statement of future intent to accelerate, not a present acceleration so as to start 5-year statute of limitations – Snow v. Wells Fargo Bank, N.A., No. 3D14-1547 (Fla. 3d DCA Jan. 14, 2015) (affirming foreclosure judgment)

TITLE INSURANCE UPDATE

  • Breach of Warranty: title insurer who was subrogated to the rights of its insured was not precluded from suing the insured’s grantor for breach of warranty merely because it knew of the defect in title at the time it issued the policy – Romero v. Stewart Title Guaranty, No. 07-14-00236 (Tex. App. Jan. 27, 2015) (affirming judgment after bench trial)
  • Negligence: title company that undertakes to record an instrument as an accommodation does not thereby undertake the duty to inspect, confirm, or ensure that the document carries out the lender’s intention – Kipperman v. First American Title Co., No. G050442 (Cal. App. Jan. 23, 2015) (affirming judgment after bench trial)