Florida Real Property and Business Law Update
Real Property and Business Litigation Report – Vol. VIII, Issue 50
Cases of interest this week include:
Dunes Of Seagrove Owners Association, Inc. v. Dunes of Seagrove Development, Inc., Case No. 1D15-1248, slip op. (Fla. 1st DCA December 11, 2015).
Florida recognizes easements in gross (personal interests in land not supported by a dominant estate) even if the easement holder is not a utility.
SE Property Holdings, LLC v. Blue Mountain Beach Master Owners Ass’n, Inc., Case No. 1D15-4849, slip op. (Fla. 1st DCA December 11, 2015).
An easement is nonpossessory, so an order determining an easement is not an order determining the immediate right to possession of property and is therefore not immediately appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii).
Bank of America, N.A. v. Kipps Colony Condominium Ass’n, Inc., — So.3d —- 2015 WL 8321268 (Fla. 2d DCA 2015).
A junior lienor cannot foreclose a superior lienor and a judgment purporting to do so is void under Florida Rule of Civil Procedure 1.540 (b) (5). Priority of real estate interests under Florida law is determined Florida Statutes sections 28.222(2) (which requires the Clerk of Court to record instruments and keep records of the recorded instrument), 695.11 (which states the sequence of recorded instruments shall determine priority), and 695.01 (which states that first in time is first in right).
Akin Bay Company, LLC v. Von Kahle, — So.3d —- 2015 WL 8345357 (Fla. 3d DCA 2015).
An assignee under Florida Statute section 727.104 (the Florida Assignment for Benefit of Creditors statutes) is bound by a mediation and arbitration clause in an assignor’s agreement with a third party.
Deutsche Bank National Trust Company on behalf of LSF MRA Pass-Through Trust v. Perez, — So.3d —- 2015 WL 8347002 (Fla. 3d DCA 2015).
A witness listed in a general fashion in a pretrial witness list is sufficient unless the party opposing the substitution of the general listed witness with a specific witness can demonstrate prejudice.
Statewide Homeowners Solutions, LLC v. Nationstar Mortgage, LLC, — So.3d —- 2015 WL 8292186 (Fla. 4th DCA 2015).
Movant for summary judgment before a defendant has answered must meet a heightened level of demonstrating no answer could ever be filed that could defeat summary judgment, including with regard to standing.
Ocwen Loan Servicing, LLC v. Delvar, — So.3d —- 2015 WL 8347300 (Fla. 4th DCA 2015).
A purported oral modification of a mortgage cannot be enforced as it violates the Statute of Frauds, and the Statute of Frauds cannot be circumvented by claims of promissory estoppel.
E&Y Assets, LLC v. Sahadeo, — So.3d —- 2015 WL 8295569 (Fla. 4th DCA 2015).
Involuntary dismissal is the proper remedy when the foreclosure plaintiff fails to prove damages at trial; reversal and remand is required when the court erroneously admits evidence.
Aboumahboub v. Honig, — So.3d —- 2015 WL 8347628 (Fla. 4th DCA 2015).
Strict compliance with notice provisions is required for ex parte enforcement of defaults under settlement agreements.
Nikolits v. Neff, — So.3d —- 2015 WL 8348320 (Fla. 4th DCA 2015).
A homeowner has a strict jurisdictional time limit under Florida Statute section 194.171(2) to appeal the valuation of their property, and this limitation cannot be circumvented by enveloping a challenge to last year’s assessment in the challenge to the current year assessment.