Florida Real Estate Lawyers Blog

July 2015 Florida Real Estate Case Law Updates

Published on: July 11, 2015 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Foreclosure Sale Notice

Skelton v. Lyons, 157 So. 3d 471(Fla. 2d DCA 2015)

Background: Debtor filed objection to foreclosure sale of property. The Circuit Court sustained the objection and set aside the foreclosure sale. Third-party purchaser appealed.

Holding: The District Court of Appeal held that the failure to serve third-party purchaser with notice of either debtor’s objection to foreclosure sale or the hearing held on the objection violated purchaser’s due process rights, and the debtor’s objection to foreclosure sale was insufficient as a matter of law.

Common Law Claims Precluded by Construction Lien Statute

Jax Utilities Management, Inc. v. Hancock Bank, 40 Fla. L. Weekly D948 (Fla. 1st DCA 2015)

Background: Contractor brought an action against construction loan lender asserting equitable lien and unjust enrichment claims. The Circuit Court granted summary judgment for the lender and the contractor appealed.

Holding: The District Court of Appeal held that the one-year statute of limitations began to run from last furnishing of labor, services, or material for the improvement of real property, barring contractor’s equitable lien claim, and, as a matter of first impression, statute governing responsibilities of construction loan lenders precluded contractor’s common law claims.

Florida Real Estate Case Law Updates

Published on: May 13, 2015 | by ESQ.title

By Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

CORRECTING A FORECLOSURE JUDGMENT

The Court considered whether Florida’s Rule of Civil Procedure allowing for corrections of “clerical mistakes,” encompasses authorization to supplement a final deficiency judgment by clarifying the party defendants’ status in the litigation almost three years after the entry of the initial judgment. See Fla. R. Civ. P. 1.540(a). The District Court of Appeal held that rule governing relief from a judgment, decree, or order on the basis of a clerical mistake did not extend to allow the Circuit Court to supplement its initial deficiency judgment in order to more definitively address the litigation status of the three party defendants.

OBJECTION TO FORECLOSURE SALE NOTICES

Debtor filed objection to foreclosure sale of property. The Court held that the Debtor’s perfunctory objection to the judicial sale did not make any claims of deficiency regarding the sale’s unfairness or irregularity. As such, Lyons’s objection was legally insufficient as a matter of law and the trial court necessarily abused its discretion by setting aside the judicial sale on this basis. And while there was a hearing held on the objection, the trial court did not make any findings in its order or state its reasoning for setting aside the sale. Similarly, there is nothing contained in the record to indicate that the sale suffered any deficiency or irregularity requiring it to be set aside. Without such a basis, the trial court abused its discretion when it set aside the sale.

What Is a Reasonable Amount of Time To Be Bound by a Florida Non-Compete Agreement?

Published on: March 31, 2015 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

In determining the reasonableness in time of a postterm restrictive covenant (a.k.a. a non compete agreement) not predicated upon the protection of trade secrets, a court must apply the following rebuttable presumptions:

In the case of a restrictive covenant sought to be enforced against a former employee, agent, or independent contractor, and not associated with the sale of all or a part of: (1) the assets of a business or professional practice; (2) the shares of a corporation; (3) a partnership interest; (4) a limited liability company membership; or (5) an equity interest, of any other type, in a business or professional practice, a court must presume reasonable in time any restraint six months or less in duration and must presume unreasonable in time any restraint more than two years in duration

Investing in NNN Triple Net Leased Commercial Real Estate Properties

Published on: February 28, 2015 | by ESQ.title

By: Alejandro E. Jordan, JD

Investing in NNN Triple Net Leased Commercial Real Estate Properties

Not all real estate investors are created equal. A large number of them simply are looking to place their hard-earned money into a safe haven to avoid the often unpredictable nature of the financial market. In a nutshell, based on how the leases are drafted, NNN leased investments state that the tenants are responsible for paying rent plus the operating expenses of the building such as taxes, insurance, repairs and utilities. A true passive investment for the owner/landlord.

These NNN (Triple Net Leased) investments are valued using a combination of factors, such as the tenant’s credit, the length of the lease and rent escalations over the term, and, last but not least, the real estate itself.

“NNN leased properties survive the ups and downs of the markets. As an investor, you know your lease is guaranteed long term, often with rental escalations worked into the leases, meaning the investor will be receiving a steady income, regardless of how the outside forces are performing,” says Enrique Jordan, Investment Sales Associate with NAI Miami, Commercial Real Estate Services Worldwide. Continue Reading ›

What are the Risks of Purchasing a Tax Deed in Florida?

Published on: January 21, 2015 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

It’s important to know that when you purchase a tax deed in Florida, that the title to the property is not immediately insurable and is not considered legally marketable. In fact, if a tax deed has been of record for fewer than 20 years, subsequent purchasers, lenders, and title insurers will not consider the title marketable and will require the tax deed holder to obtain a judgment quieting title in the holder before relying on the tax title. Thus, tax deed properties that are acquired without further legal action are essentially worthless unless you plan to rent or live in the property for the next twenty years before selling it.

Quiet Title Actions

Tax deed purchasers who don’t wish to wait 20 years to sell their newly acquired property must file a quiet title action to obtain marketable, insurable title. The purpose of a quiet title action is to forever bar prior owners, mortgage and lien holders from asserting any interest in the real property.

Because a quiet title action stops redemption periods and eliminates potential claims of lien, once the quiet title action is complete and the 30-day appeal period expires, you’ll be able to sell the property, offer marketable, insurable title to a prospective purchaser or obtain title insurance for yourself. In short, a successful quiet title action will allow a title insurance company to write a policy insuring title to the property.

Crafting an Enforceable Noncompete Agreement

Published on: October 28, 2014 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Courts have traditionally viewed noncompete agreements with disfavor, believing that the agreements contravene public policy. The agreements were seen as unfair restraints on trade and in response, the common law prohibited the use of such agreements. In time, the restrictions on such agreements lessened. Nevertheless, the common law has generally restricted their use for any purpose other than for legitimate business purposes. To ensure the purpose is legitimate, the law requires that a valid noncompete agreement meet a reasonableness requirement.

The reasonableness requirement is designed to balance the interests of all entities affected by the noncompete agreement: the employer, the employee, and society as a whole. Each entity has an interest to be protected. The employee wishes to preserve his mobility; the employer wishes to protect itself from unfair competition; and society wishes to balance with a system that provides incentives for the development and training of employees. With such varied interests at hand, the successfully drafted noncompete agreement must be sculpted carefully as to satisfy all three parties.

Commercial Real Estate – Terms & Definitions

Published on: October 21, 2014 | by ESQ.title

By: Alejandro E. Jordan, Esq.

Commercial Real Estate – Terms & Definitions

Availability Rate: The ratio of available space to total rentable space, calculated by dividing the total available square feet by the total rentable square feet.

Available Space: The total amount of space that is currently being marketed as available for lease in a given time period. It includes any space that is available, regardless of whether the space is vacant, occupied, available for sublease, or available at a future date.

Build-to-Suit: A term describing a particular property, developed specifically for a certain tenant to occupy, with structural features, systems, or improvement work designed specifically for the needs of that tenant. A build-to-suit can be leased or owned by the tenant. In a leased build-to-suit, a tenant will usually have a long term lease on the space.

Buyer: The individual, group, company, or entity that has purchased a commercial real estate asset.

Cap Rate: Short for capitalization rate. The Cap Rate is a calculation that reflects the relationship between one year’s net operating income and the current market value of a particular property. The Cap Rate is calculated by dividing the annual net operating income by the sales price (or asking sales price).

CBD: Abbreviation for Central Business District. (See also: Central Business District)

Central Business District: The designations of Central Business District (CBD) and Suburban refer to a particular geographic area within a metropolitan statistical area (MSA) describing the level of real estate development found there. The CBD is characterized by a high density, well organized core within the largest city of a given MSA. Continue Reading ›

Partition of Florida Real Estate

Published on: October 5, 2014 | by ESQ.title

By: Daniel T. Pascale, Esq.

Offices located in Delray Beach and Coral Gables, FL

Joint property ownership is a partnership at its core. Partnerships are great tools to save money, promote economies of scale, and better utilize resources. However, in situations where more than one party owns property, decision-making may become cumbersome, partners may not always get along, or they may have different interests which don’t reconcile with each other. Oftentimes, these problems can be resolved without court intervention, but when they cannot, partition of real estate may be the best solution. The following is a general overview of the Florida partition process.

Partition Requirements

Under F.S. 64.041, a complaint for partition must allege:

a description of the lands of which partition is demanded;

the names and places of residence of the owners, joint tenants, tenants in common, coparceners, or other persons interested in the lands;

the quantity of the interests held by each; and

any other matters as are necessary to enable the court to adjudicate the rights and interests of the parties.

Partition Sales

A partition sale is a secondary measure used only when the property cannot be divided.

Under F.S. 64.061(4), on the motion of any party, property may be sold in lieu of partition if either of the following conditions is satisfied:

There is an uncontested allegation in a pleading that the property is indivisible and not subject to partition without prejudice to the owners.

A judgment of partition is entered and the court is satisfied that allegations of indivisibility are correct.

If one of these requirements is met, the court may appoint a special magistrate or the clerk to sell the property. The sale may be either private or public.

1st Quarter 2014 Industrial Market Report for Miami-Dade County CRE

Published on: August 4, 2014 | by ESQ.title

By: Alejandro E. Jordan, Esq.

Total Industrial inventory in the Miami-Dade County market area amounted to 229,374,658 square feet in 8,790 buildings as of the end of the second quarter 2014. The Flex sector consisted of 16,908,307 square feet in 600 projects. The Warehouse sector consisted of 212,466,351 square feet in 8,190 buildings. Within the Industrial market there were 782 owner-occupied buildings accounting for 30,523,593 square feet of Industrial space.

Sales Activity

Miami-Dade County industrial sales figures for industrial building sales of over 15,000 square feet fell during the first quarter 2014 in terms of dollar volume compared to the fourth quarter of 2013.

Raising Money through Real Estate Syndications – Recent Law Changes to the Rule 506 Exemption

Published on: April 15, 2014 | by ESQ.title

By: Alejandro E. Jordan, Esq.

The Jumpstart Our Business Startups Act, known as the Jobs Act, has changed the way to raise money from groups of investors to purchase commercial and investment real estate properties. Many forget that raising money from multiple investors is often viewed as selling “securities” and are regulated and restricted under the federal securities laws.

What Changed?

In its July 10, 2013, meeting, the Securities and Exchange Commission adopted the new Regulation D, Rule 506(c) as authorized by the Jobs Act (Title II), which became effective September 23, 2013. Under the new rule, persons such as issuers, sponsors, syndicators, or promoters selling “securities” to private investors to fund their companies or real estate transactions will be able to advertise their private-investment opportunities under certain conditions.