A Florida condominium association believes a unit is abandoned and is worried about the condition of the unit. The association also wants to collect assessments or rent but a there is a superior lienholder, like a first mortgage on the condominium unit. Section 718.111(5), Florida Statutes, provides Florida condominium associations some authority to inspect, maintain, and even lease the abandoned condominium unit.
Whether you are a potential plaintiff or a potential defendant, in a business dispute, determining whether punitive damages can be successfully added to the claim is an important part of the legal analysis and should be considered as early in the process as possible. If you are a potential plaintiff, it is important to analyze whether a claim for punitive damages can be added. Successfully adding a claim for punitive damages will likely increase the potential value of the claim. If you are a potential defendant, it is important to understand whether a plaintiff can successfully move to add a claim for punitive damages based upon the causes of action pled.
In a post-housing crisis economy, many homeowners, facing a plummet in home values, found themselves trapped in homes that are worth less than the amount they owe bank. Those homeowners have sought refuge in Chapter 7 bankruptcy proceedings, attempting to strip down the first mortgage and leaving many junior lienholders holding nothing but the bag—until now. In a big win for lenders, the U.S. Supreme Court recently ruled that a debtor in a Chapter 7 bankruptcy proceeding cannot void a second mortgage, when the debt owed on the first mortgage exceeds the current value of the collateral. See Bank of America, N.A. v. Caulkett, 135 S. Ct. 1995 (2015). The decision reverses an interpretation of the Bankruptcy Code in Florida bankruptcy courts—an interpretation further affirmed by the Eleventh Circuit—which allowed a Chapter 7 debtor to strip off and void a mortgage lien that is wholly underwater.
Occasionally a borrower’s counsel or counsel for an institution that has served as a lending partner in some capacity will get crafty in trying to shift the blame for bad business transactions to the originating and lead lending institution by asserting claims against the original lender for not performing like a reasonable and prudent bank can be expected to perform in the administration of a loan. The claims come in many forms, but they are all predicated on the same fundamental premise: if the bank had performed a better/reasonable underwriting or processing of the original loan, then the losses that ultimately occurred would have been prevented. Fortunately for banks, these types of claims are unsustainable in Florida law. There is no tort duty for banks to process loans competently. See Silver v. Countrywide Home Loans, Inc., 760 F. Supp. 2d 1330, 1339 (S.D. Fla. 2011).
Warranties are a valuable part of a construction contract. A multi-year warranty is more valuable than a 1-year warranty. A contractor’s offer to provide a multi-year warranty may induce an owner to select that contractor and enter into the contract. Often, multi-year warranties are included in the written contract, or separate written warranty policies are provided at the end of the project. However, not all construction contracts are written, and contractors don’t always provide a written policy at the end of a project. This raises the question: are oral multi-year warranties enforceable? They may not be. The Statute of Frauds may bar their enforcement.
Occasionally we are engaged to represent members of a closely held company who are being “squeezed out” of their business. This comes in many forms, but one of the fact patterns I have seen is when an LLC management committee meeting is conducted without notice, without proper quorum or in a way that makes the decisions voidable by the oppressed member/shareholder. Specifically, Florida law prohibits amendment to the bylaws of a company that are purposefully sought to restrict a particular shareholder’s original and vested contract rights, in an operating/ shareholder’s agreement or otherwise.
Featured in the June 2015 Issue Partner’s Perspective: Celebrating Change J&C Moves to Wells Fargo Center 5 Things You Need to Know About Partner Brad Hughes Charles Jimerson Elected to the JBA Board of Governors New Law Blogs Curiosities, Ruminations and Various Eccentricities of Firm Biz Click to read.
Resolution of construction and design defects in Florida are governed by Chapter 558 of the Florida Statutes. Unless parties have agreed to opt-out of the requirements of Chapter 558, its statutory provisions apply to all commercial and residential construction projects. The Governor recently approved changes to Florida Statute Chapter 558 on June 16, 2015. These changes take effect on October 1, 2015. Chapter no. 2015-165 and Final Bill analysis.
“Change is inevitable – except from a vending machine”—Robert C. Gallagher. The history of human civilization has taught us that change through new land development is constant and a never ending occurrence. Sure, land development ebbs and flows with economic cycles, but new construction can always be found somewhere at any given time. With land development comes the need for new and expanded infrastructure, involving government action at some level. Private citizens, whose property is in the crosshairs of government development plans, will receive notice that all or part of their property is subject to governmental taking — the proverbial offer that you can’t refuse. Yet, thanks to the U.S. Constitution, private citizens are not without rights here. This blog post is part I in a series of posts to assist private property owners with protecting their property interests, maximizing just compensation and ensuring entitlement to attorney’s fees in eminent domain actions and government takings.
An agreement to arbitrate, which contains a class action waiver, can be an effective tool to help prevent small or moderate consumer claims from becoming class action lawsuits. Class consumer litigation, particularly that utilizing the Florida Deceptive and Unfair Trade Practices Act (hereinafter “FDUTPA”), has become en vogue over the last several years. As these types of class claims become more popular, it is more important to properly protect your business with well drafted agreements. It is also important to ensure that none of your agreements, if multiple agreements are necessary to complete a transaction, have conflicting terms.