Florida Real Estate Case Law Updates

Daniel PascaleBy: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Estate by entirety.  A deed was to an undivided 98 percent interest and H and W, husband and wife, as to an undivided two percent interest, creates an estate by the entirety in the two percent interest even though that phrase was not used in the deed.  Roberts-Dude v. JP Morgan Chase Bank, N.A., 498 B.R. 348 (S.D. Fla. 2013).

Prior judgment trumps homestead rights.   A valid judgment lien which attached prior to acquisition of homestead rights is superior and enforceable.  LaCalle v. Hauptman, 118 So.3d 239 (Fla. 3d DCA 2013).

Retaining trade fixtures.   Where a lease is ambiguous as to which party is entitled to retain trade fixtures when the lease expires, the tenant is entitled to retain the trade fixtures.  H. Allen Holmes, Inc. v. Jim Molter, Inc., 38 Fla. L. Weekly D2399 (Fla. 4th DCA 2013).

Document authentication required for foreclosed.  In order to establish its entitlement to foreclosure, a lender must introduce the subject note and mortgage and they must be authenticated by the records custodian or a person with personal knowledge of the documents.   Kelsey v. SunTrust Mortgage, Inc., 38 Fla. L. Weekly D2549 (Fla. 3d DCA 2013).

Foreclosure time after notice of acceleration.  A mortgagee’s foreclosure suit filed more than five years after its notice of acceleration was barred based on the five-year statute of limitations which began to run from the notice date.   Broward County v. 8705 Hampshire Drive Condo, Inc., 38 Fla. L. Weekly D2546 (Fla. 4th DCA 2013).

Injunction denied to require city action.  An action by a homeowners association against a city seeking a declaratory and injunctive relief to require the city to prosecute a building and zoning enforcement action against a property owner should be dimissed.  Detournay v. City of Coral Gables, 38 Fla. L. Weekly D2552 (Fla. 3d DCA 2013).

Terms of easement given plain meaning.  In an ingress and egress easement, the terms “control” and “maintenance” of the gate are not synonymous and thus the court concluded that one HOA was given the responsibility for maintenance and another HOA was given ultimate control of the gate.   Grove at Harbor Hills Homeowners v. Harbor Hills Development, L.P., 38 Fla. L. Weekly D____(Fla. 5th DCA, Dec. 13, 2013).