REAL PROPERTY UPDATE

  • Statute of Limitations/Liens:  one year statute of limitations to enforce equitable lien under Fla. Stat. sec. 95.11(5)(b) runs from last furnishing of labor, services, or material for improvement of real property; Fla. Stat. sec. 713.3471(2) expressly precludes common law claim for equitable lien and unjust enrichment – Jax Utilities Management, Inc., v. Hancock Bank, No. 1D13-664 (Fla. 1st DCA Apr. 22, 2015) (affirmed)
  • Commercial Lease/ Restrictive Covenants: exclusivity provision did not create indefinite restrictive covenant running with land as Lease effectively fixed duration of the provision via lease term – Amelia Island Restaurant II, Inc. v. Omni Amelia Island, LLC, No. 1D14-1961 (Fla. 1st DCA Apr. 22, 2015) (affirmed in part, reversed in part)
  • Municipal Corporations/Taxation: PILOT Agreements, which are mechanisms that local governments in Florida (and elsewhere) use to exact ad valorem taxes from otherwise tax exempt entities, violate Florida public policy and article VII, section 9(a) of the Florida Constitution. – AHF-Bay Fund, LLC v. City of Largo, Florida, No. 2D14-408 (Fla. 2d DCA Apr. 22, 2015) (reversed and remanded) (Question certified: Do PILOT agreements that require payments equaling ad valorem taxes that would otherwise be due but for a statutory tax exemption violate section 196.1978, Florida Statutes (2000), and article VII, section 9(a) of the Florida Constitution?)
  • Arbitration/Foreclosure: arbitrator lacked jurisdiction where cross-claim, containing dispute's only arbitration clauses, voluntarily dismissed – Laquer v. Falcone, Nos. 3D14-1804 and 3D14-1803 (Fla. 3d DCA  Apr.  22, 2015) (reversed and remanded)
  • Foreclosure Sale: trial court departed from essential requirements of law in cancelling sale based upon mortgagors' poor health and fact that they listed property for sale in hopes of obtaining short sale – Firstbank Puerto Rico v. Othon, No. 4D15-583 (Fla. 4th DCA Apr. 22, 2015) (reversed)
  • Foreclosure: error to enter foreclosure judgment after nonjury trial, where judgment was titled “summary judgment” and recited standards applicable to summary judgment –Fiorentino v. BAC Home Loans Servicing, LP, No. 5D13-3250 (Fla. 5th DCA Apr. 24, 2015) (reversed and remanded)
  • Proposal for Settlement Pre-2011/Apportionment: proposal for settlement made pre-2011 by two defendants constituted a joint proposal and was invalid under Fla. Stat. sec. 768.79 and Fla. R. Civ. P. 1.442 because proposal failed to apportion some portion of total settlement amount between each of them – Pratt v. Weiss, Case No. SC12-1783 (Fla. Apr. 16, 2015) (quashing decision below and remanding)
  • Proposal for Settlement/Apportionment: proposal for settlement patently ambiguous where single offeror submits settlement proposal under Fla. Stat. sec. 768.79 and Fla. R. Civ. P. 1.442 which resolves pending claims by or against additional parties who are neither offerors nor offerees; such a proposal constitutes a joint proposal subject to Rule’s apportionment requirement – Audiffred v. Arnold, Case No. SC12-2377 (Fla. Apr. 16, 2015) (approving of decision below)
  • Foreclosure/Damages: trial court erred in entering final judgment of foreclosure where no testimony offered to explain damages figures contained in judgment – Colson v. State Farm Bank, F.S.B., Case No. 2D13-5526 (Fla. 2d DCA Apr. 15, 2015) (reversed in part and remanded for further proceedings)
  • Commercial Lease/Damages: tenant not allowed to terminate lease due to purported illegal condition on property, and as damages, landlord entitled to difference between amounts due under remaining term of lease, less amounts received from new tenant –Griffin Indus., LLC v. Dixie Southland Corp., Case No. 4D13-2328 (Fla. 4th DCA Apr.15, 2015) (affirming judgment in landlord’s favor, but remanding for recalculation of damages)
  • Discovery/Privileged Documents: trial court’s order compelling production of documents protected by attorney-client privilege, based on relevance, was a departure from essential requirements of law – Fla. Power & Light Co. v. Hicks, Case No. 4D14-4337 (Fla. 4th DCA Apr. 15, 2015) (quashing order)

FINANCIAL SERVICES UPDATE

  • FCCPA: letter sent to represented borrower as required by federal Home Affordable Modification Program not an attempt to collect a debt in violation of FCCPA - Hurtubise v. PNC Bank, N.A., No. (Fla. 6th Jud. Cir. Ct. (App.)) (affirmed)

TITLE INSURANCE UPDATE

  • Attorneys’ Fees: buyers not entitled to attorneys’ fees under California’s reciprocity statute after escrow agent disbursed funds in breach of instructions because instructions contained only unilateral indemnity clause, not unilateral fee provision - Rideau v. Stewart Title of California, Inc., No. D065751 (Cal. App. Apr. 1, 2015) (affirmed)
  • Apparent Authority: insurer who limits title insurance issuing agent’s authority to issue policies pursuant to its agency agreement may not rely on that limitation as to third-party lender to argue policy was not authorized – FV-1, Inc. v. Commonwealth Land Title Ins. Co., No. 3-14-0455 (M.D. Tenn. Apr.10, 2015) (order on summary judgment)
  • Actual Authority: insurer who does not authorize its title insurance issuing agent to handle closings on its behalf is not liable to lender for the agent’s actions in handling the closing – FV-1, Inc. v. Commonwealth Land Title Ins. Co., No. 3-14-0455 (M.D. Tenn. Apr.10, 2015) (order on summary judgment)
  • Class Action: motion to compel individual arbitration was not prematurely ordered by the court and failed as a matter of law to establish the existence of the individual arbitration agreements – Kirk v. First American Title Ins. Co., No. B252238 (Cal. App. Apr.7, 2015) (affirming order denying motion to compel arbitration)