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 October 2020

promissory note

BUYER TENDERS CORRECT AMOUNT, SELLER DENIED ATTORNEYS FEES
Burdett v. Opton, 4D19-2136 (Fla. 4th DCA Sept. 16, 2020)

A seller accepted a promissory note in exchange for stock and later sued the buyer for nonpayment and sought to replevin the stock that was collateral for the note.  The buyer claimed that he attempted to tender the full amount due on the note, but the seller refused and rejected his calculation of interest.

The buyer obtained a court order which allowed him to deposit with his attorney the amount he believed was due on the note.  The court ultimately determined that the buyer’s calculation of interest was correct and that he had tendered the correct amount to satisfy the note.  The court denied the seller’s motion to recover attorney fees under Florida Statute § 679.623(2)(b) which requires a debtor to tender “reasonable expenses and attorney’s fees” along with the fulfillment of any obligation secured by the collateral.  The court further found that the seller was not the prevailing party on the significant issues in the litigation and therefore not entitled to recover fees under the promissory note.  The buyer’s effort to deposit the money during the course of the lawsuit allowed him to avoid possible fees and costs liability.

Lien

PRE-CONSTRUCTION BUYER ALLOWED TO PURSUE EQUITABLE LIEN
Gabriji, LLC v. Hollywood East, LLC, 4D19-3495, (Fla. 4th DCA Sept. 30, 2020)

A buyer entered into a pre-construction agreement to purchase a condominium unit from the seller developer.  Subsequent to the agreement the developer scrapped plans for the condominium in favor of rental apartment.  A third party sued to foreclose a lien on the developer’s debts which resulted in a foreclosure sale and yet another party taking title to the subject property.

The buyer sued the new property owner asserting various legal theories, including an equitable lien. The trial court judge granted the motion and the buyer appealed. The Fourth District Court of Appeal ruled in favor of the buyer finding that the lawsuit should be allowed to proceed.

Of particular interest was the Court’s analysis of the claim for an equitable lien.  The buyer alleged that it was the buyer of property, paid monetary deposits that were used to develop the property, but did not receive a return of the deposit or the property. The new owner acquired title to the property through a foreclosure action the buyer was not a party to.  The Court concluded that the buyer had in fact stated a claim for an equitable lien and that its case should be allowed to continue.

PRE-CONSTRUCTION BUYER ALLOWED TO PURSUE EQUITABLE LIEN Gabriji, LLC v. Hollywood East, LLC, 4D19-3495, (Fla. 4th DCA Sept. 30, 2020) A buyer entered into a pre-construction agreement to purchase a condominium unit from the seller developer. Subsequent to the agreement the developer scrapped plans for the condominium in favor of rental apartment. A third party sued to foreclose a lien on the developer’s debts which resulted in a foreclosure sale and yet another party taking title to the subject property. The buyer sued the new property owner asserting various legal theories, including an equitable lien. The trial court judge granted the motion and the buyer appealed. The Fourth District Court of Appeal ruled in favor of the buyer finding that the lawsuit should be allowed to proceed. Of particular interest was the Court’s analysis of the claim for an equitable lien. The buyer alleged that it was the buyer of property, paid monetary deposits that were used to develop the property, but did not receive a return of the deposit or the property. The new owner acquired title to the property through a foreclosure action the buyer was not a party to. The Court concluded that the buyer had in fact stated a claim for an equitable lien and that its case should be allowed to continue.

EVICTION COMPLAINT RESULTS IN FAIR HOUSING ACT COUNTERCLAIM
Danforth v. Jamaica Bay E. Mgmt. Co., Inc., 4D19-1440 (Fla. 4th DCA Sept. 30, 2020)

A married couple resided in a residential community with their adult son who was diagnosed with autism. The son was involved in an incident with the community’s management involving his car and the car was towed, leading him to an incident with management office personnel where the police were called.

The property owner sent a lease termination notice to the couple and, after settlement discussions proved unsuccessful, later filed a complaint for tenant eviction. The couple answered the complaint and filed a counterclaim under the Fair Housing Act for intentional disability discrimination and for refusal to make reasonable accommodations for a disability. The trial judge granted summary judgment in favor of the property owner, finding that the couple had failed to prove they timely and properly requested a reasonable accommodation for their son.

The Fourth District Court of Appeal reversed the summary judgment in favor of the property owner, allowing the counterclaim against it to proceed.  While the property owner claimed it did not know the son suffered from a disability until after it acted to evict, the couple claimed that they provided written notice requesting an accommodation before any potential court eviction and that management responded with an unreasonable proposal that was adverse to them and their son.  The Court found that there were issues of fact whether notice of a disability and a request for an accommodation were given before adverse action were taken and that the summary judgment was improper.

Jed Frankel is a shareholder 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 law, litigation and dispute resolution. He can be reached at jfrankel@eisingerlaw.com or 954-894-8000 x 301.

This presentation is designed to provide general information on the topic presented and is not rendering any legal or professional services.  Although these materials are prepared by professionals, the content and information provided should not be used as a substitute for professional services, and such content and information does not constitute legal or other professional advice. If legal or professional advice is required, the services of a professional should be sought. Eisinger Law is a full-service Florida law firm focusing on community association law, real estate law, developer representation, commercial litigation and insurance law. Visit eisingerlaw.com