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Insider Real Estate and Community Association Update

December, 2018 Special Holiday Edition

Text messages may be discoverable.
O’Boyle v. Town of Gulf Stream, 4D17-2725, 2018 WL 5291287, at *3 (Fla. 4th DCA Oct. 24, 2018)
While not controlling on community associations cases involving requests for public records under the “Sunshine Act” can be helpful when responding to a unit owner record requestGulf Stream residents sought copies of text messages sent or received by the Town’s mayor.  The Fourth District Court of Appeal observed that the right of access to public records is a “cornerstone of our political culture,” and that the Sunshine Law must be liberally construed in favor of access, and all exemptions must be limited to their stated purpose.

The Mayor – although using a private cellphone – conducted public business within the scope of his duties as a public official.  In doing so, he made certain of his text messages public records.  The Appellate Court ordered the trial judge to conduct an in-camera inspection of the text messages to determine whether any qualified as public records.  While community associations are governed by different statutory provisions, this case illustrates the possible broad sweep of concepts of operating in the sunshine that might lead to the disclosure of text messages on private devices.
In light of the broad access to records seen in the public arena, Association agents should accordingly be careful when communicating messages (as well as e-mails) as they may be subject to disclosure at a future date.

Homeowner Allowed to Raise Fraud Defense in Seven Year Old Foreclosure Case.
Home Title Co. of Maryland, Inc. v. LaSalla, 2D17-998, 2018 WL 6005232, at *4 (Fla. 2d DCA Nov. 16, 2018)
Five years after his initial answer to a bank’s foreclosure complaint, a homeowner retained new counsel and sought to amend his defenses to include a claim of fraud.  The trial judge denied that motion along with two subsequent motions to amend, with the last denied because the case was then pending for seven years.  The subsequent trial resulted in a final judgment of foreclosure.  The Second District reversed the final judgment concluding that the trial court erred in refusing to allow the homeowner to raise additional defenses simply because of the length of time the case had been pending.

Reverse Mortgage – Statute of Limitations Starts to Run Upon Maturity of Note
Hayes v. Reverse Mortgage Sols., Inc., 3D17-1603, 2018 WL 6071448, at *1 (Fla. 3d DCA Nov. 21, 2018)
In a case of first impression, Florida’s Third District Court of Appeal ruled that in cases involving a home equity conversion note and mortgage (a “reverse mortgage”) where the borrower dies before the note matures, the statute of limitations does not begin to run until the note matures.

Proper Service of Process A Must
Benavente v. Ocean Vill. Prop. Owners Ass’n, Inc., 4D18-1819, 2018 WL 6205810 (Fla. 4th DCA Nov. 28, 2018)
Cases brought by community associations to collect from delinquent unit owners are frequently straightforward.  A recent appellate decision illustrates that such a case can be significantly complicated – to the association’s detriment – by failure to follow the law regarding service of process upon defendants.

Prior to filing suit, the association’s counsel sent demand letter to three addresses.  The unit owners signed a certified mail receipt at one of the addresses located in Key Biscayne.  The letters did not result in payment and the association thereafter filed suit attempting without success to serve the unit owners at only one of the addresses, but not the Key Biscayne address.  After numerous attempts at service, the association filed an affidavit for service by publication, claiming that the unit owners could not be found within Florida.

Based on that affidavit, the association obtained service by publication and thereafter a default and final default judgment in its favor.  Once they learned of the final default judgment against them, the unit owner moved to set it aside asserting that a search of the public records would have indicated the address of their primary residence where they resided since 2010, that the association knew their primary address, that the association knew the address at which it tried to effectuate service was a rental property, and that the association had their email address.

The Fourth District Court of Appeal ruled that the final default judgment was void as a matter of law because the affidavit for service by publication was facially defective – it failed to advise that the association was aware of the unit owners Key Biscayne address – and that the association failed to conduct a diligent search – it failed to uncover an easily accessible address, that is the Key Biscayne address at which they received the letter sent certified mail.  The association will now need to start all over.

The right to notice and due process of law is a fundamental principal of our civil justice system which courts routinely enforce.  It is therefore critical in all cases involving service by publication or substitute service – especially association collection cases – that the applicable statutes be closely followed.

Jed Frankel is a partner with Eisinger Law. He is a Florida Certified Circuit Mediator and is Board Certified in Condominium and Planned Development Law, as well as Civil Trial Law, by The Florida Bar. He focuses his practice on community association and dispute resolution. He can be reached at or 954-894-8000 x 301.

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