Justia Real Estate & Property Law Opinion Summaries

Articles Posted in June, 2011
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First Union National Bank of Florida (First Union) appealed a judgment in favor of the Lee County Commission (Commission) and Philip Summers. Mr. Summers executed a mortgage on property he owned within the County on which he built a summer home. The home was ultimately subject to a tax sale by the County. The trustee for Mid-State Trust IV sued the Commission and Mr. Summers in 2009 seeking the excess redemption proceeds from the tax sale of the Summers property. The trustee later filed a motion to substitute First Union as the real party in interest. The trial court eventually entered a judgment finding that Mr. Summers was entitled to the excess funds from the tax sale because he was the last "owner" as defined by state law against whom the taxes were assessed. Upon careful consideration of the trial courtâs record and the applicable legal authority, the Supreme Court affirmed the lower courtâs decision.

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Petitioner Beverly Scannelly petitioned the Supreme Court for a writ of mandamus to direct the circuit court to vacate all orders it entered after she filed a notice of dismissal. Furthermore, Petitioner sought a writ of prohibition to restrain the lower court from future attempts to exercise jurisdiction over her case. Petitioner sued her brother, Respondent Gary Toxey, in 2009, seeking to void certain real-estate transfers her father made to Mr. Toxey. Petitioner filed, sought dismissal, and refilled her complaint three times in three different circuit courts. Mr. Toxey "answered" Petitionerâs complaint approximately one year later by filing a responsive pleading that collaterally attacked her complaint under "res judicata." The circuit court dismissed her case in 2010, finding that Mr. Toxey essentially filed a motion for summary judgment and that Petitionerâs claims presented no issues of material fact. In affirming the circuit courtâs decision, the Supreme Court concluded that Petitioner failed to demonstrate she had a clear legal right to her requested writs. Accordingly, the Court denied her petition.

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This case arose from certain hurricane damage claims made by respondent under a 2004 insurance policy issued by respondent's original insurer. When the original insurer became insolvent, the Florida Insurance Guaranty Association (FIGA) then became obligated to respond to certain claims made under that insurance policy. At issue was the proper test to be utilized by a court when determining whether a statute could be applied retroactively, in this case to a contract of insurance. The court held that the court's precedents both before and after the Fourth District's decision required the court to engage in a two-pronged inquiry to determine if the 2005 amendments to section 627.7016, Fla. Stat., were to be applied retroactively. Thus, the Fourth District misapplied this precedent when it omitted the first inquiry into whether the Legislature clearly expressed an intent that the statute be applied retroactively and moved directly to the second inquiry, whether retroactive application would be constitutional. For this reason, and because there was no clear evidence of legislative intent for retroactivity, the court quashed the decision of the Fourth District to the extent it was inconsistent with the opinion and remanded for further proceedings.

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Steven and Lauren Siwinski, homeowners in the town of Ogden Dunes, rented their home despite receiving a cease and desist letter advising them that that rentals were prohibited by the town zoning ordinances. The town filed suit against the Siwinskis for violating town ordinances. Both parties moved for summary judgment, and the trial court granted the town's motion for summary judgment and injunctive relief. The trial court entered judgment in favor of the town in the amount of $40,000. The court of appeals reversed and remanded with instructions that the trial court enter summary judgment in favor of the Siwinskis. On transfer, the Supreme Court affirmed the trial court's granting of summary judgment in favor of the town, holding that the Siwinskis impermissibly rented their dwelling in violation of the town's ordinances. The Court then held that the fine for violating this ordinance should not have exceeded $32,500. Remanded.

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Countrywide Home Loans, a mortgage holder on certain real estate, foreclosed its mortgage, took title to the property at a sheriff's sale, and then sold the property to a third party. Before these events, the property owners executed a promissory note in favor of Citizens State Bank. When the property owners failed to pay the note, Citizens Bank obtained a judgment in trial court, which was properly recorded. At the time Countrywide filed its foreclosure action, it did not name Citizens Bank as a party. After Countrywide discovered Citizens Bank's judgment lien on the property, Countrywide filed an action to foreclose any interest Citizen Bank may have had on the property. Citizens Bank filed a separate complaint seeking to foreclose its judgment lien. The trial court directed Citizens Bank to redeem Countrywide's mortgage or be barred from asserting its judgment lien. The court of appeals reversed. The Supreme Court also reversed the judgment of the trial court but on different grounds, holding that because Citizen Bank's lien on the property was properly recorded and indexed and because Countrywide did not explain why the lien was overlooked, Countrywide failed to demonstrate that it was entitled to the remedy of strict foreclosure.

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At issue in this case were the rights of three brothers who were residuary beneficiaries under a testamentary trust. One of the brothers leased the trust property when the trust terminated. The other two brothers sued him and the trustee to determine their respective rights. The one brother appealed the district court's judgment that found the trust was properly terminated and that he was not entitled to compensation for improvements he made to the property. Upon careful consideration of the district court record, the Supreme Court found there were genuine issues concerning reimbursement for the improvements made to the property. The Court reversed the district court on that issue, but affirmed the lower court as to all other issues. The case was remanded back to the district court for further proceedings.

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Jacklin Land Company (Jacklin) owned real property that it developed into a commercial industrial complex. The development was subject to multiple covenants, conditions and restrictions (CC&Rs). One of the CC&Rs was that the development was not intended for retail businesses. In April 2008, Blue Dog RV, a retailer, began negotiating with Jacklin about the purchase of land in within the complex. During the course of the negotiations, Blue Dog also discussed renting four undeveloped lots across the street, but still within the complex. KL Properties owned those four lots. Ultimately Blue Dog leased space from KL Properties. Citing the CC&Rs, Jacklin sent notice to Blue Dog to vacate the KL leased space. When further negotiations between the parties proved unfruitful, Jacklin filed suit to enjoin KL Properties and Blue Dog from using the space for RV retail. The trial court ruled in KL and Blue Dog's favor. On reconsideration, the court issued an injunction against Blue Dog for violation of the CC&Rs. Upon review, the Supreme Court found that the district court's injunction was technically flawed because it did not give "explicit notice of precisely what conduct was outlawed," and that it enjoined unknown persons who were not party to this action. The Court vacated the district court's judgment, and remanded the case for further proceedings.

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Plaintiffs Stephen and Marilee Bell hired contractor Defendant Perception Construction Management, Inc. (PCM) to build a log home. The parties' relationship deteriorated, and the Plaintiffs terminated the contract before construction was complete. Plaintiffs refused to pay PCM's final invoices, and PCM filed suit to enforce a lien it placed on the home for the unpaid invoices. Plaintiffs filed multiple counterclaims, including construction defect and breach of contract. PCM prevailed at trial, and the district court found PCM was entitled to damages, prejudgment interest and attorney fees. Plaintiffs appealed, contending that the district court erred by excluding certain evidence relating to their defense against the lien, and in its determination of the monies allegedly owed under the lien. The Supreme Court found that the district court impermissibly excluded Plaintiffs' evidence, and as such, the Court vacated the district court's judgment and remanded the case for further proceedings.

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Gregory Ternes purchased a residential property from Keith and Sue Eberhard. The Eberhards were insured by State Farm when the house received water damage. Sue reported the damage, and State Form listed the claim on a website report. The Ternes purchased the home without being aware of the website report. The Ternes later attempted to sell the property to the Giardinos, who backed out of the deal. Afterwards, Ternes learned of the website report. Ternes filed a complaint with the state commissioner of insurance, alleging that State Farm put false information on the website, causing the sale of the residence to the Giardinos to fall through. The commissioner advised Ternes that State Farm had not submitted a false report as per State Farm's understanding at the time of the loss. Ternes then filed an action in the district court against State Farm and the Eberhards. The district court granted summary judgment in favor of defendants. On appeal, the Supreme Court affirmed, holding that the district court did not err in granting summary judgment for State Farm and the Eberhards because there were no genuine issues of material fact and both defendants were entitled to judgment as a matter of law.

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Russell and Melissa Levens and Al Ballard, neighboring property owners, entered into an agreement defining the location of the boundaries of their properties. The agreement provided that Ballard would not excavate on his property within thirty feet of the Levens' property. After Ballard occupied the area between the two properties and refused to sign a certificate of survey pursuant to the agreement, Levens brought an action against Ballard to enforce the agreement and for an injunction. The district court enjoined Ballard from excavating on the disputed property and later granted Levens' motion for summary judgment. Levens later filed a motion for contempt against Ballard for failure to abide by the judgment. The district court denied the motion and entered an order awarding attorney fees to Ballard. On appeal, the Supreme Court reversed the orders, holding that the judgment must be construed to prevent Ballard from excavating in such a way that the pit intrudes into the thirty-foot buffer strip at the edge of Levens' property.