Call Us: (954) 894-8000 | ENGLISH | ESPAÑOL | PORTUGUÊS
Generic selectors
Exact matches only
Search in title
Search in content
Search in posts
Search in pages
Visit Us On TwitterVisit Us On FacebookVisit Us On LinkedinVisit Us On Instagram
Call Us: (954) 894-8000 | ENGLISH | ESPAÑOL | PORTUGUÊS
Generic selectors
Exact matches only
Search in title
Search in content
Search in posts
Search in pages
Visit Us On TwitterVisit Us On FacebookVisit Us On LinkedinVisit Us On Instagram

Insider Real Estate and Community Association Law Update March 2020

STRANGE BEHAVIOR DOES NOT WARRANT STALKING INJUNCTION

Sinopoli v. Clark, 45 Fla. L. Weekly D296 (Fla. 2d DCA February 7, 2020)

A homeowner became frightened over her neighbor’s conduct that she felt had become intrusive and disturbing over the course of several years – including cutting down much of the foliage that had created a barrier between their respective homes, sitting on his porch and appearing to watch her every move throughout the day, and using a razor blade to shred his pool cage. The homeowner was often at home alone because her husband traveled frequently for work. Finally, after the neighbor installed a floodlight that faced directly on her back door and outdoor shower, she became paralyzed by fear. Afraid to venture into her backyard, she sought an injunction against stalking pursuant to Florida Statute §784.0485.

The trial court judge conducted an evidentiary hearing at which both the homeowner and the neighbor testified. The judge then entered an injunction against the neighbor, inasmuch as he was particularly concerned about the floodlight that he described as invading the quiet enjoyment of her backyard.

The neighbor appealed the injunction. The Second District Court of Appeal reversed the injunction, finding that although the homeowner was sincerely distressed by her neighbor’s conduct, the conduct did not rise to the level that would cause “substantial emotional distress” in a reasonable person, as is required to issue the requested injunction.

The Court noted that, while it was unfortunate that these neighbors did not get along, these types of injunctions are not designed to keep the peace between parties who are unable to get along or act civilly toward one another or to cure all social ills.  Rather, they are extraordinary remedies only to rectify egregious conduct outlined in the applicable statutes.

ASSOCIATION PROPERLY SOUGHT DECLARATORY JUDGMENT

Emerald Grande W. Condo. Ass’n v. Abrams, No. 1D19-760, 2020 Fla. App. LEXIS 1747 (1st DCA Feb. 12, 2020).

A condominium association sought a declaratory judgment from the court that a provision in its developer-drafted declaration of condominium documents that forbade the association from independently terminating a management agreement was unenforceable, inasmuch as it was contrary to Florida law.

The defendants opposed that declaratory judgment and convinced the judge that the association was not entitled to it because the association was in essence impermissibly seeking an advisory legal opinion from the judge, rather than presenting an actual case or controversy.

The appellate court reviewed the case and ruled that the association had, in fact, properly sought the declaratory judgment, because the action’s very purpose is to decide the rights, status, and relations of parties when in doubt, as was the case with the subject termination provision. The association was accordingly allowed to proceed with its case.

OWNER PREVENTS CONDOMINIUM TERMINATION

Dania Beach Boat Club Condo. Ass’n v. Forcier, No. 4D18-3511, 2020 Fla. App. LEXIS 1753 (4th DCA Feb. 12, 2020)

When termination of a commercial dry stack boat condominium consisting of 210 back racks was proposed, a unit owner objected to the plan and filed suit to prevent it. The dispute centered around what percentage of unit owners was required to approve the termination of the condominium pursuant to the governing declaration. The competing provisions required unanimous consent or, alternatively, approval of 75 percent of the unit owners.

The case proceeded to trial. The condominium association argued that only 75 percent approval was required. It stipulated before and at trial that a 2007 amendment to Florida Statute §718.117 could not be applied retroactively because the declaration did not contain “Kaufman” language. (“Kaufman” language provides that an association’s declaration incorporates statutory amendments to the Condominium Act “as may be amended from time to time.”) Without such “Kaufman” language, the earlier version of the statute applied. The court ruled that the termination plan was invalid and that unanimous consent was required.

ELECTRONIC COPIES RECOGNIZED AS CERTIFIED COPIES FOR RECORDING PURPOSES                                                                               

City of Miami Gardens v. US Bank Nat’l Ass’n, No. 3D19-1263, 2020 Fla. App. LEXIS 1348 (3d DCA Feb. 5, 2020)

As part of a quiet title action, a dispute arose regarding whether the City of Miami Gardens’ electronically-filed code enforcement orders were “certified copies” for purposes of recording in the public records. If not, the City’s liens would have been invalid, the action claimed.

The liens at issue did not contain the words “certified copies,” but contained the signature of the City’s special master, a notarization, the seal of the City, and the City Clerk’s signature.

In a ruling that may set the standard going forward and recognizing “the age of electronic filings,” the court held that such certified orders, transmitted electronically by the City to the County Clerk for filing in the public record were, in fact, “certified copies”.

BROKER CAN’T RECOVER ON PROCURING CAUSE DOCTRINE

Esslinger-Wooten-Maxwell, Inc. v. Lones Fam. Ltd. P’ship, Nos. 3D19-49, 3D19-135, 2020 Fla. App. LEXIS 859 (3d DCA Jan. 29, 2020).

A real estate broker entered into a written exclusive listing agreement with a property owner that provided an exclusive right to sell or lease the property within 12 months in exchange for a six percent commission. The property was not sold or leased within the 12-month period.

Two years after the expiration of the listing agreement, two prospective buyers whom the broker had introduced to the property were “re-introduced” to it by another broker who had also entered into a listing agreement with the property owner. The property was eventually sold to an entity the first broker alleged was affiliated with the two prospective buyers it introduced. The second broker was paid a commission in connection with the sale.

The first broker filed suit, claiming that it was the procuring cause and entitled to a commission. The judge ruled against the first broker, finding that the procuring cause doctrine did not apply because the listing agreement was a “special contract” for an express period of 12 months with a 12-month protection provision thereafter. No other protections were agreed to. Accordingly, the procuring cause doctrine was not incorporated into the listing agreement by the property owner and the first broker. The Third District Court of Appeal affirmed the judge’s decision.

CONDOMINIUM ARBITRATION DECISIONS MUST BE APPEALED TO CIRCUIT COURT

Ciccarello v. Siena Villas at Beach Park Condo. Ass’n, No. 2D18-3748, 2020 Fla. App. LEXIS 523 (2d DCA Jan. 17, 2020).

Disputes between unit owners and their condominium association are generally submitted to the Florida Department of State for mandatory non-binding arbitration pursuant to Florida Statute § 718.1255. That law allows for a trial de novo so that an aggrieved party can seek a judicial resolution of the dispute. But what happens when the losing party wants to appeal, but files in the wrong court?

Florida’s Second District Court of Appeal recently addressed that question when an aggrieved unit owner sought to challenge an arbitration award entered in favor of her condominium association by filing an appeal rather than a complaint in circuit court. The Second District dismissed her appeal because review of an arbitration award can only be obtained in the circuit court. This case illustrates the hazards of proceeding without the assistance of knowledgeable counsel, especially before, during, and after the mandatory arbitration process.

Jed Frankel is a shareholder with Eisinger, Brown, Lewis, Frankel & Chaiet, P.A. 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 law, litigation and dispute resolution. He can be reached at jfrankel@eisingerlaw.com or 954-894-8000 x 301.