Archive for the ‘Real Estate’ Category

Florida Hurricane Damage Case: Homeowner Collects Under BOTH Flood and Wind Insurance Policies, No Set Off

Monday, May 24th, 2010

We are approaching hurricane season in Florida and with recent natural disasters firmly fixed in mind, this case may give some reassurance to homeowners — as long as your carriers do not “go FIGA.”

In Florida Farm Bureau Casualty Insurance Co. v. Willis and Katherine Mathis (First DCA: Van Nortwick, Lewis and Rowe), Hurricane Ivan in 2004 caused damage to the Mathis’ home.  Flood water rose over four feet.  The Mathis family had flood and wind policies.  The flood carrier paid limits.  The windstorm carrier declined to give policy limits.  A suit and trial ensued with a jury finding a constructive or actual total loss warranting policy limits.  The carrier appealed, claiming they were entitled to set off the flood payment.

There is potentially a lot in this case for insurance coverage lawyers.  The bottom line, however, is that the First DCA held that the policies were separate and that the Florida Valued Policy Law (Florida Statute 627.702(1)) did not require set offs.  Thus, the Mathis were to receive $250k (flood) and $295k (wind) on their two story house which had an estimated value between $400-500,000.  Thus, and pardon the pun a homeowner can collect under two separate policies even if there is a “windfall.”

Death of the Pure Bill of Discovery in Florida?

Sunday, May 9th, 2010

Probably so, but not quite yet.

The case of Venezia Lakes Homeowners Association, Inc. v. Precious Homes at Twin Lakes Property Owners Assoc. (Third DCA: Suarez, Logoa, and Salter) reverses a trial court and remands with instructions to grant summary judgment on the grounds that a pure bill cannot be used to determine if a lawsuit exists.

In this case, two adjacent homeowners’ associations share expenses on one of two lakes.  Under the contract, Precious pays Venezia 30% of the expenses for one lake.  Typically, they get an approved budget with a single category, “lake budget,” which they believe may include expenses for both lakes — thus they may be overpaying.  When Precious asked for the service contracts which support the budget entry, they were refused.  They filed a pure bill of discovery to get those service contracts.

The Panel held that the pure bill of discovery’s “usefulness [has] diminished greatly” and quotes a swath of cases from the various intermediate appellate courts.  If there is no other remedy, it can be used to identify potential defendants, theories of liability, and information to meet conditions precedent to file suit.  But, in very vague terms, it “cannot be used as a fishing expedition to see if a case exists.”

Here, the court ruled that the pure bill does “not lie to see if a cause of action exists nor… [to determine] the extent of damages.”  Herein, the court suggested that alternative remedies were available including a declaratory judgment or breach of contract claim.

Appraisal Contingency Clause in Florida Real Estate Contract

Friday, April 30th, 2010

The Second District held that a clause allowing an “appraisal contingency” was valid which permitted the prospective buyer to back out of a contract without penalty.

The case is Nigel and Christine Gibney v. Randy and Helen Pillifant (LaRose, Villanti, Fu;mer).

The home sales contract was “contingent upon this property appraising for no less than $620,000 to be conducted by a local appraiser.”  Buyer performed an appraisal which came back under that amount.  Seller then requested an appraisal which was higher.  Who wins?

The panel held that “although inartful, this [clause] is not ambiguous” and that “appraising for no less than $620,000″ means that NO appraisal may be back less than that amount.  It was suggested that the sellers could have reserved the right to a competing, controlling appraisal.

Can You Sue Individual Board Members of Your Condominium or Homeowner Association in Florida?

Wednesday, December 9th, 2009

Yes but it is unlikely you will win, particularly in the Fourth District Court of Appeal.

Back in 2006, a rather dramatic homeowner versus association battle was partially resolved in Berg v. Briddle Path Homeowners Association where the court addressed director and officer statutory immunity under the homeowner statute, Florida Statute Chapter 617.

The same issue arose, but was confronted more directly, in the recent case of Stephen and Marjorie Raphael v. Beach Point Condominium Association (Stevenson, Polen, and Gerber).  In this case, the condo owners were upset that balcony dividers were replaced with transparent dividers, thus reducing their privacy while allegedly improving other condo owners’ view.

To sue the condo board members directly, the plaintiff had to allege that there was fraud, criminal activity or self-dealing in order to overcome the directors’ statutory immunity in Florida Statute 607.831(1) and 617.0834(1).

The Panel held that there was no self-dealing or personal benefit simply because the board members voted for and approved alternations or improvements to the common areas which they, as owners, also enjoyed.

Do You Need a “Bedbug” Clause to Buy Sell Home or Condo in Florida?

Sunday, August 30th, 2009

With real estate sales slowly coming back to life, the last thing buyers and sellers or their lawyers need is another clause or provision to create headaches.  No, it isn’t chinese drywall.  It’s bedbugs.  And considering that tropical Florida is essentially Darwin’s waiting room when it comes to critters and creatures, a wise buyer/seller may want to consider specific statements about… bedbugs.

The New York Times broke the story suggesting that, at least in New York City, bedbugs are “the new mold.”

Here in Florida, a professional but clear statement in the closing documents likely would go a long way to avoid future hassles.  Consider it a limitation of liability… with many little legs.

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