REAL PROPERTY UPDATE

  • Commercial Lease/Cotenancy Provisions: whether cotenancy provision in lease for retail space in shopping center, which requires other particular store(s) in shopping center to remain occupied by operating businesses,  are unconscionable or an unreasonable penalty depends heavily on facts proven in particular case; provision at issue not unconscionable where both parties sophisticated and experienced in negotiations -  Grand Prospect Partners, L.P. v. Ross Dress For Less, Inc., No. F067327 (Cal. App. Ct. January 12, 2015) (modifying judgment to award damages only for unpaid rent)
  • Foreclosure/Motion to Vacate: motion to vacate on grounds that bank committed fraud was untimely because it was brought more than one year after final judgment –Hollingsworth v. Deutsche Bank Nat’l Trust Co., as Trustee, Case No. 1D14-0607 (Fla. 1st DCA Jan. 20, 2015) (affirming denial of Rule 1.540 motion)
  • Foreclosure/Statute of Limitations: reversing dismissal of foreclosure action on statute of limitation grounds because facts supporting the defense were outside the four corners of the pleading – CCM Pathfinder Palm Harbor Mgmt., LLC v. Unknown Heirs, Case No. 2D13-5286 (Fla. 2d DCA Jan. 21, 2015) (reversed and remanded)
  • Sinkhole Litigation/Application Misrepresentation: trial court improperly granted summary judgment in insurer’s favor rescinding insurance policy on the basis that homeowners misrepresented condition of home in application because of the limited evidence presented – Mora v. Tower Hill Prime Ins. Co., Case No. 2D13-4125 (Fla. 2d DCA Jan. 23, 2015) (reversed and remanded)
  • Damages/Loss of Use: trial court erred in denying homeowner loss of use damages for property when expert testimony established prima facie case for loss of use damages  –Gonzalez v. Barrenechea, Case No. 3D12-3430 & 3D13-987 (Fla. 3d DCA Jan. 21, 2015) (reversed and remanded)
  • Foreclosure/Due Process: final order closing foreclosure action without notice to plaintiff bank violated the bank’s due process rights and was void – U.S. Bank Nat’l Ass’n, etc. v. Proenza, Case No. 3D14-2102 (Fla. 3d DCA Jan. 21, 2015) (reversing order denying Rule 1.540 motion with directions)
  • Foreclosure/Standing: reversing final judgment of foreclosure because the bank failed to prove standing – Murray v. HSBC Bank USA, Nat’l Ass’n, as Trustee, Case No. 4D13-3156 (Fla. 4th DCA Jan. 21, 2015)

TITLE INSURANCE UPDATE

  • Coverage: insurer who short pays insured’s mortgage based on appraised fair market value of property as a result of total failure of title satisfies its obligations under the policy and insured is not entitled to policy limits  Marchetti v. Chicago Title Ins. Co., Case No. 12-cv-05985 (N.D. Ill. Jan 8, 2015) (memo opinion and order granting summary judgment)
  • Coverage: 2006 owner’s policy does not cover consequential damages – Marchetti v. Chicago Title Ins. Co., Case No. 12-cv-05985 (N.D. Ill. Jan 8, 2015) (memo opinion and order granting summary judgment)
  • Subrogation: insurer who defends quite title action, settles with insured and then files third-party claims to recover payments under the policy is subrogated to insured’s rights under the policy, is not under a duty to diligently prosecute such third party actions, and is not required to pay any recovered sums to insured – Marchetti v. Chicago Title Ins. Co., Case No. 12-cv-05985 (N.D. Ill. Jan 8, 2015) (memo opinion and order granting summary judgment)
  • Discovery: court sanctioned insurer who failed to implement litigation hold resulting in the deletion of an unknown number of emails despite the fact that insurer had a document collection procedure in place – Fidelity Nat. Title Ins. Co. v. Captiva Lake Inv., LLC, Case No. 4:10-cv-1890 (E.D. Mo. Jan. 7, 2015) (memorandum and order on sanctions motion)
  • Escrow Agent: attorney who acts as escrow agent owes a duty to the lender to disclose second mortgage – Florida Bar v. Marrero, Case No. SC11-1780 (Fla. Jan. 2015) (disapproving referee’s report)
  • Jury Instructions: insured who sought 50% of policy limits at trial but who failed to object to jury instructions which did not provide for an award of the lesser amount tendered by the insurer (in the event the jury found no breach of the policy), was not entitled to new trial – Millies v. Landamerica Transnation, Case No. 31521-5 (Wash. App. Jan. 15, 2015) (affirming jury verdict)
  • Misrepresentation: timeshare developer who required a purchaser of a timeshare property to purchase title insurance and said to the purchaser that title insurance was a requirement of the purchase did not thereby misrepresent Florida law – McIntyre v. Marriott Ownership Resorts, Inc., Case No. 13-80184 (S.D. Fla. Jan. 13, 2015) (order granting motion to dismiss)
  • Unjust Enrichment: a claim for unjust enrichment for recovery of title insurance premiums will not lie where the parties’ contract governs the purchase of title insurance – McIntyre v. Marriott Ownership Resorts, Inc., Case No. 13-80184 (S.D. Fla. Jan. 13, 2015) (order granting motion to dismiss)
  • Coverage: a notice of abatement action is not a lien or encumbrance on the title and thus not covered under a title insurance policy – Stockton Mortgage, Inc. v. Tope, Case No. C071210 (Cal. App. Jan. 20, 2015) (affirming summary judgment)
  • Title Commitment: a preliminary title report or title insurance commitment is, as a matter of law, an offer to issue title insurance and not a contract – Stockton Mortgage, Inc. v. Tope, Case No. C071210 (Cal. App. Jan. 20, 2015) (affirming summary judgment)