Articles Posted in Case & Legislative 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).

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Daniel PascaleBy: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Florida Statute 689.071 creates an entity known as a Florida Land Trust. A Florida Land Trust is a device by which real estate is conveyed to a trustee under an arrangement reserving for the beneficiaries the full management and control of the property.  The trustee executes deeds, mortgages, or otherwise deals with the property at the written direction of the beneficiaries.  The beneficiaries collect, rent, improve and operate the property without holding legal title.  Two instruments create the land trust arrangement.  The “deed in trust” conveys the realty to the trustee.  Contemporaneously with the deed in trust, a trust agreement is executed.

As discussed in our prior post (here), although the Florida Land Trust is a relatively unknown legal entity, it can offer a wide variety of benefits. Land trusts created under Florida Statute 689.071 are useful tools for many purposes, such as:

Privacy

By operation of law, the beneficial interests in a land trust remain entirely private.  Thus, as long as the Trustee is also not the beneficiary of the land trust, the beneficiary(ies) will remain anonymous absent order of a court.  Moreover, land trust agreements are not recorded in the public records.  Thus, the specific provisions of the trust are never disclosed to the public.

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img_2205By: Daniel Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

COURT APPOINTED RECEIVER OVER CONDO ASSOCIATION

Granada Lakes Villas Condo Ass’n, Inc. v. Metro-Dade Investments Co.,

74 So.3d 593 (Fla. 2d DCA 2011), app’d 38 Fla. L. Weekly S777 (Fla. 2013)

The developer of a subdivision of a larger condominium complex and the master property owners association for the development (owners association) sued the condominium association (condo association), alleging that the condo association failed to pay the developer and the owners association related expenses for common areas after collecting fees and assessments collected from owners of the condominium units. The developer subsequently filed an emergency motion for the appointment of a receiver over the condo association in order to facilitate the collection of the fees and assessments and to perform a proper accounting. The trial court concluded that it lacked the statutory authority to appoint a receiver in this instance.

On appeal the Second District Court reversed the trial court’s judgment, holding that the trial court erred as a matter of law because its right to appoint a receiver in this case was inherent in a court of equity, not a statutorily created right. The Supreme Court approved the appellate court’s decision, holding that a court’s inherent equitable power to appoint a receiver over a non-profit condominium association like the condo association was not limited to certain statutorily enumerated circumstances.

SERVICEMEMBERS CIVIL RELIEF ACT

Higgins v. Timber Springs Homeowners, 38 Fla. L. Weekly D2274 (Fla. 5th DCA 2013)

A homeowners association sued to foreclose on a lien in the amount of $363.33 for unpaid homeowner’s fees. The homeowner wrote three letters to the judge informing him that the homeowner was serving in the United States Army. One of the letters enclosed orders requiring the homeowner to be in Pennsylvania two weeks before the hearing on the association’s motion for summary judgment. Nevertheless, the trial court granted the motion for summary judgment, entered final judgment of foreclosure, and denied the homeowner’s motion to vacate the final judgment of foreclosure.

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By: Daniel Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Florida’s condominium laws change frequently and affect hundreds of thousands of unit owners in the process. During Florida’s last legislative session, the legislature enacted a number of changes to Chapter 718, Florida Statutes (Florida’s Condominium Law). The highlights of the 2013 amendments to Florida’s Condominium Law are summarized below:

Elevator Retrofitting: Associations do not have to involuntarily retrofit elevators pursuant to local ordinances unless their building’s elevator is replaced or requires a major modification.

Association Acquisition of Lands of Recreational Leases: Associations can now upon a vote of, or written consent by, a majority of the total voting interests or as authorized by the declaration as provided in s. 718.113, acquire lands of recreational leases.

“Insurable Event”: as defined in s. 718.111(11), has been clarified to include damage occurring to a portion of the condominium property for which the unit owner has responsibility.

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Dan PascaleBy: Daniel T. Pascale, Esq.

In an effort to alleviate the foreclosure crisis, Florida’s Legislature recently passed a foreclosure bill (House Bill 87) that will significantly impact Miami-Dade and Broward County homeowners facing foreclosure. From a homeowner’s perspective, the biggest problem with Florida’s latest foreclosure law is that it speeds up the foreclosure process by requiring the homeowner to prove to the Court in an “order to show cause hearing” that the foreclosure should be stopped.  On the other hand, the biggest relief to the homeowner is that the Bank will only have one year to pursue a deficiency judgment (i.e. the difference between what the homeowner owes on the loan and what the home sells for at a foreclosure sale). Other important aspects of Florida’s latest foreclosure law, which all homeowners facing foreclosure in Miami and Broward County should know about, include:

The Positives

Foreclosure Deficiency Judgments: The time frame for the Bank to pursue a deficiency judgment against the homeowner has been drastically shortened from five (5) years to one (1) year.  That means that the Bank only has one year to pursue a collection action against the homeowner for the amount that the Homeowner actually owed on the loan and what the house ultimately sold for in the foreclosure sale.  If the Bank does not initiate a collection action against the Homeowner within one year, the Bank loses the right to collect the deficiency judgment.

Tightened Paperwork Requirements: Banks are now required to initially identify in their foreclosure complaint whether they are in possession of the mortgage note and/or their factual basis for bringing a foreclosure action without being in possession of the mortgage note.  If the Bank is in possession of the promissory note, the Bank must file a copy of the promissory note with the foreclosure complaint.  If the Bank fails to file the promissory note with the foreclosure complaint then there may be grounds to file a motion to dismiss the foreclosure lawsuit.

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