Monthly Archives: October 2012

Beware of Termination for Convenience Clauses

By: Matthew F. Havice, Esq.

Termination for Convenience clauses were first introduced during the American Civil War and were used in government contracts. Such provisions in contracts with the Federal government allowed the government to terminate contracts related to military procurements that were no longer necessary as a result of changing technology or the cessation of hostilities. Termination for Convenience clauses continued to gain greater favor with the Federal government through WWI and WWII and today almost every government contract, be it related to military service/goods or not, contain the termination provision. As such, we are seeing a trend of including the provisions in private party contracts. Recently, a matter involving such a clause in a private party contract was heard on appeal by the Florida Second District Court of Appeal in Vila & Son Landscaping Corp. v. Posen Construction, Inc., 2012 WL 4093545 (Fla. App. 2 Dist.), 37 Fla. L. Weekly D2228. Read Full Post

CATEGORY: Florida Business Litigation Blog, Florida Construction Industry Law Blog Practice Areas: ,

Available Remedies in Addition to an Action for Foreclosure: Part I Receiverships and Sequestration of Rents

By Kelly A. Karstaedt, Esq.

Aside from foreclosing on a piece of real property, a Lender may utilize numerous other methods to recoup monies left unpaid on a mortgage note and to take control of a piece of property that may be losing value based on improper management. In this first installment piece, we will look at the purpose and process for appointing a receiver and sequestering rental income generated by the property. Read Full Post

CATEGORY: Florida Business Litigation Blog Practice Areas: , ,

The Attorney-Client Privilege: Disclosure of Confidential Information to Property Management Companies in Furtherance of Representation of Condominium or Homeowner’s Associations

By: Charles B. Jimerson, Esq. and Kristen Sinnott, J.D. 2013

Attorneys are not only ethically, but lawfully obligated to keep certain divulged information confidential in furtherance of representing a client. However, issues may arise whereby certain documentation may need to be transmitted to a third party. For example, an attorney represents a homeowner’s association whose property management company is responsible for maintaining records including contracts and invoices. In the interest of acquiring discoverable records, the attorney must communicate with the management company and disclose otherwise privileged information. Is the attorney-client privilege waived if information crosses paths with the management company? The answer is no, based on a careful interpretation of the Florida statutes.
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CATEGORY: Florida Condominium Law Blog Practice Areas:

For associations concerned with owner bankruptcies, quarterly assessments are preferred over annual assessments as post-petition assessments are not dischargeable.

By: Charles B. Jimerson, Esq. and Hans Wahl, Esq.

Under Florida law, it is better for an HOA to charge installment dues over the course of a year rather than allow for a lump sum payment at the beginning of each year. This is because post-petition debts, including post-petition HOA fees, are not dischargeable in a bankruptcy. Read Full Post

CATEGORY: Florida Condominium Law Blog Practice Areas: ,

When does a party’s partial or full performance validate an oral agreement?

By: Charles B. Jimerson, Esq. and Hans Wahl, Esq.

The purpose of the Statute of Frauds is to prevent one party from committing perjury in regards to an agreement and to also prevent the enforcement of agreements “based on memories made faulty by the lapse of time or loose verbal statements.” Rowland v. Ewell, 174 So.2d 78, 80 (Fla. 2d DCA 1965). The Statute of Frauds, however, is a peculiar doctrine of contract law as there are a few exceptions that make an otherwise unenforceable oral agreement enforceable. This Blog focuses on two such exceptions: part performance (or partial performance) and full performance of an oral agreement. Read Full Post

CATEGORY: Florida Business Litigation Blog Practice Areas: ,