Welcome to the website of the law office of Steven D. Rubin.  Mr. Rubin has been licensed to practice law in the State of Florida since 1981. His office  is located at 980 N. Federal Highway, Suite 440, Boca Raton, Florida 33432. He is admitted to practice before all of the State Courts in Florida and is Board Certified by the Florida Bar in Real Estate Law and Condominium and Planned Development Law.

Case Law Update

BRIGHT LINE MRTA EXTINGUISHMENT RULE DIMMED

The primary purpose of Florida’s Marketable Record Title Act (“MRTA”) is to extinguish title claims that predate the root of title. MRTA eliminates ancient claims and defects in title and, as the Act’s title indicates, promotes the marketability of title (i.e., title that is free of stale claims, defects, and adverse interests). The “root of title” is usually a deed, and it must be of record at least 30 years prior to the date of the current title search. There are limited exceptions to the extinguishment of claims which predate the root of title. Among them, is the following:

“Estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title; provided, however, that a general reference in any of such muniments to easements, use restrictions or other interests created prior to the root of title shall not be sufficient to preserve them unless specific identification by reference to book and page of record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such easement, use restrictions or other interests; . . .” Florida Statutes Sec. 712.03(1).

This provision was understood to mean that unless the claim is referenced by official record book and page in the root of title deed itself, or in deeds subsequent to the root of title, it is extinguished by MRTA. As an example, a deed typically contains the phrase: “Subject to easements, restrictions and reservations of record”. This phrase would presumably constitute a “general reference” to such restrictions, and would not preserve them because the official record book and page of the recorded restrictions are not stated.

Recently, the 5th District Court of Appeal had the opportunity to decide whether a reference in a deed to HOA covenants not identified by official record book and page was a “general reference” and therefore the covenants were extinguished by MRTA because they were recorded before the root of title deed. The Court, in Barney v. Silver Lakes Acres Property Owner’s Ass’n. Inc., 159 So. 3d 181 (Fla. 5th DCA 2015), held that the phrase in the root of title deed:

“Subject also to the obligations of the owners of each lot of Silver Lakes Acres s/d to the Silver Lakes Acres Property Owners Association, their successors and assigns, which said obligations Grantee assumes and agrees to pay”,

was NOT a “general reference”, and therefore, the covenants were preserved, even though the  book and page of the covenants were not stated in the Deed. Was it the fact that the Grantee assumed the obligations that convinced the Court that the reference was something other than a “general” reference because “[a]ppellants simply cannot claim something was hidden in the chain of title to their lots.” Barney, supra? Would the result have been different if the assumption language were absent? It is unclear from the facts stated in the Case whether the assumption language was contained in all of the deeds in the subdivision. If not, the covenants may have been extinguished with respect to those lots which did not have the assumption language in the root of title deeds.

The HOA covenants in the Barney case were recorded, albeit, before the root of title, so the covenants were not  “hidden” as the Court suggests. A person has, at minimum, constructive knowledge of recorded instruments, and it is only the application of MRTA that would extinguish them. If the test for extinguishment were  whether the lot owner had “actual or constructive knowledge” of the claim, MRTA would be impossible to apply without a judicial determination of that fact in every title examination. In my opinion, that type of analysis defeats the purpose of the bright line rule which is stated in the MRTA Statute itself – if the claim is not referenced by  book and page in the deed, then it is extinguished.The Court might have reached the same result and at the same time have confirmed the bright line rule by holding that the HOA covenants were extinguished by MRTA, but the Grantees waived  extinguishment, they were equitably estopped to deny their existence, or they became contractually bound to comply with the covenants, because the Grantees expressly acknowledged their existence and  assumed the obligations in the deed.

What was a bright line rule has now been dimmed, and each restriction in a root of title deed (and subsequent deeds) must be interpreted to determine whether the claim “is or is not hidden”, and whether the claim is a “general reference”, or something else, when the  book and page of the referenced instrument is not stated in the deed. It will now be problematic for title examiners and title insurers to determine marketability of title and to insure title, without a judicial determination of whether a restriction, estate, interest, or easement in a root of title deed is “general”, or otherwise, when no record reference for them is stated. Future grantees should expect to see more exceptions to title in title policies and claims made against title as a result of this case. It is noted that the case was not appealed to the Florida Supreme Court and rehearing was denied.

HOMESTEAD REMINDER – WILL YOUR SPOUSE AND FORMER SPOUSE LIVE TOGETHER IN YOUR FORMER MARITAL HOME AFTER YOUR DEATH?

We are all familiar with the Florida constitutional homestead protection against the forced sale of real property. Pursuant to Article X, Section 4, of the Florida Constitution, a natural person can claim a homestead exemption from forced sale on 160 acres of land if located outside a municipality, and one-half acre of land if located within a municipality, provided the land constitutes the residence of the owner. In addition, the homestead protection extends to the residence of the owner’s “family”. Upon the owner’s death, the owner’s surviving spouse or heirs of the owner can retain the exemption to prevent the deceased owner’s creditors from forcing the sale of the owner’s homestead property, and the owner’s surviving spouse and lineal descendants may have protected distribution rights in the homestead property. Generally, if a decedent is survived by a spouse or  a minor child, the homestead real property cannot be devised, and the surviving spouse takes a life estate,with a vested remainder to lineal descendants.

In Friscia v. Friscia,  39 FLaLWeekly D1810a (Fla. 2dDCA  August 27,2014), we were reminded about the need to determine who is residing in the real property, even if the owner is not, to determine whether it may still be homestead property. In Friscia, Mr. Friscia owned a home with his wife. They divorced, and Mr. Friscia moved out of the marital home and subsequently remarried. However, Mr. Friscia’s minor sons continued to reside with his former wife in the former marital home, and Mr. Friscia provided financial support for his sons. Mr. Friscia died, and his son and second wife claimed that the former marital home was Mr. Friscia’s homestead, and therefore not subject to the extensive creditor claims filed against the estate. The trial court concluded that even though the former wife was awarded the exclusive use and possession of the former marital home, because Mr. Friscia provided financial support to his two sons and the two sons resided in the former marital home, the former marital home was entitled to Mr. Friscia’s homestead exemption as his “family’s” residence (but only to the extent of Mr. Friscia’s one-half interest in the property  – one-half because he and his former wife each then owned an undivided one-half interest as tenants in common, as divorced owners of a prior tenancy by the entireties).  Mr. Friscia’s interest in the former marital home was thus not subject to the creditor claims against his  Estate.

As a consequence of this ruling, the second wife, who by law acquired a life estate in one half of the former marital home (due to the restriction on the devise of homestead property), then argued that as a life tenant she was entitled to reside in and enter the former marital home on an unrestricted basis (which was then occupied by the former wife and Mr. Friscia’s children), even though the marital settlement agreement signed by Mr. Friscia granted the former wife exclusive use and possession of the former marital home. The second wife also argued that the former wife could not sell the marital home when the oldest child reached the age of majority, even though the marital settlement agreement contained a provision requiring the sale of the marital home if the former spouse had not exercised her option to buy out Mr. Friscia’s one half interest in the property. The trial court lamented about the “untenable consequences associated with the implementation of this Court’s order.” I suppose the trial court was imagining the former spouse and second wife sitting down at the dinner table each night for a “friendly” discussion of the day’s events,  and sleeping in the same house together for the indefinite future!

Not to worry. The Appellate Court affirmed the trial court’s order, but also concluded that although the marital settlement agreement was not a waiver of the homestead exemption, its terms were binding on Mr. Friscia’s heirs. Thus, the second wife would not have any use of the former marital home while the former wife was residing there (because the marital settlement agreement granted the former wife the exclusive use and possession of the home), and the former spouse could still require the sale of the former marital home after the oldest child reached the age of majority.

SUCCESSOR OWNER NOT LIABLE FOR PREDECESSOR’S CONSTRUCTION OF BUILDING WHICH IS INACCESSABLE BY PERSONS WITH HANDICAPS

The Federal Fair Housing Act (42 U.S.C Section 3604) (“FHA”) prohibits discrimination against persons with handicaps. The Florida Civil Rights Act contains similar provisions (F.S. Section 760.23). One provision of the FHA prohibits discrimination in connection with the design and construction of dwellings (42 U.S.C. Section 3604(f)(3)(C)). Applicable dwellings must be readily accessible to and usable by handicapped persons. Examples include wheelchair accessibility – wider doors, maneuverability in the kitchen area, and accessible light switches and electrical outlets. A violation of the FHA could lead to the award of actual and statutory damages, punitive damages, and attorney’s fees and costs, as well as injunctive relief in favor of an aggrieved private plaintiff.

If a building is designed and/or constructed in violation of the handicap accessibility guidelines, but the building is then sold, is the new owner of the building liable for the violations, or obligated to remedy the violations, which were created by the prior owner who designed and constructed the building? The 11th U.S. Circuit Court of Appeal recently held that the legislative history of the FHA and the FHA’s clear meaning impose liability exclusively on a defendant who was involved in the design and construction of the building. If the subsequent owner had no such involvement, then it cannot be held liable. The Court commented that if the FHA were interpreted to impose liability on subsequent owners, the “potential owners would need to thoroughly investigate compliance with the guidelines prior to purchasing a covered dwelling or risk liability.” The Court had sympathy with the plaintiff, but not enough sympathy to expand the scope of the FHA beyond Congress’ intent. See Harding v. Orlando Apartments, LLC, 24 Fla. L. Weekly Fed. C1245 (11th Cir. April 14, 2014).

 

COMMON LAW AUTHORITY TO APPOINT A RECEIVER

What remedies does a unit owner have if the condominium association fails to collect assessments and pay the bills? Perhaps the owner could sue each director for breach for fiduciary duty or sue the association to compel it to comply with its duties under the governing documents and Chapter 718. Another remedy might be the appointment of a receiver for the association. A receiver is a person or corporation who is disinterested and is given the authority to collect income and pay expenses for the association in lieu of the board of directors. The receiver accounts to the court and the association for the income received and expenditures made, and is entitled to reasonable compensation for its services.

However, statutory authority for appointing a receiver for a not for profit condominium association does not include the circumstance of a mismanaged association. Chapter 718 authorizes the appointment of a receiver only  if the association fails to fill vacancies on the board, or to conclude the affairs of the association after a natural disaster. Chapter 617 authorizes the appointment of a receiver only  to wind down the affairs of the corporation.

In Florida,  common law can be applied  by a court to determine the outcome of a legal dispute,  unless its application is otherwise restricted or prohibited by statute or the constitution. “Common law” is the non-statutory law developed over the ages in England and passed down to the courts of the United States when England colonized North America. It consists of some of the most basic principles of law which evolved over time as the courts decided cases, and the older cases became precedent for more recent ones. For example, you will not find a statute which defines what the legal elements of a binding Florida real estate contract are. Instead, a review of Florida case law is required to make this determination. If there is no Florida case on point, you could look at case law in other common law states as persuasive authority on the issue presented.

In the recent case of Granada Lakes Villas Condominium Association, Inc. v. Metro-Dade Investments Co,     So.3d    (Fla. 2013), the Florida Supreme Court reaffirmed  the applicability of common law in Florida if it has not been prohibited or restricted by statute. With respect to receiverships, common law permits the appointment of a receiver in cases of fraud, self-dealing, and waste, and a court has wide equitable discretion to appoint a receiver under those circumstances.

The Florida Supreme Court concluded that there is nothing in Florida Statutes Chapter 718 or 617 which restricts or prohibits the court’s equitable common law  power to appoint a receiver for reasons other than those enumerated in the Statutes. Thus, a Florida court does have the  common law authority to appoint a receiver when there is condominium association mismanagement which causes waste, for example, if an  association fails to pay certain maintenance and utility expenses causing “health nuisances on the property”.

THE COURT GIVETH AND THE LEGISLATURE TAKETH AWAY

When a person buys a new home, the contract for sale and purchase with the developer typically contains construction warranties for the major structural components of the home. If the home is located in a subdivision, the developer also usually constructs and installs essential subdivision infrastructure to make the home habitable, such as roads for ingress and egress, sewer lines for disposing of waste, electrical conduit for electricity, and drainage to remove rainwater. The issue arose whether there are any implied warranties of fitness and merchantability for subdivision infrastructure improvements installed by the developer, even though the contract for sale between the developer and purchaser only contains warranties for the home itself, and if so, can a homeowners association bring suit against the developer on behalf of the homeowners for breach of the implied warranties for defective subdivision improvements. Two Florida District Courts of Appeal came to opposite conclusions and the Florida Supreme Court had to resolve the conflict.

In Maronda Homes Inc. of Florida v. Lakeview Reserve Homeowner’s Association, 38 Fla.L.Weekly S859(Fla. November 21, 2013), the Florida Supreme Court sided with the Fifth District Court of Appeal and held that a homeowner’s association can bring an action for breach of implied warranty of fitness and merchantability against the developer for defects in subdivision infrastructure which directly impact the homes and provide services essential to the habitability of the residences. In Moranda, there was  inadequate drainage which caused flooding of retention ponds and negatively impacted the habitability of the homes by creating child safety issues, mosquito infestation, and other “dangerous conditions.” Based upon the association’s allegations, the Court ruled it did state a valid cause of action for breach of implied warranty of fitness and merchantability.

But the Court had to consider one final issue. During the pendency of the case,  in 2012, the Florida Legislature adopted Florida Statute Sec. 553.85 (the “Act”), effective July 1, 2012.  The Act essentially states that there is no implied warranty of fitness or merchantability for subdivision infrastructure improvements when there is no damage to the home itself (or under or on the lot), and the  improvement does not immediately and directly support the habitability of the home. The Act states that “it applies retroactively  . . .to all cases accruing before, pending on, or filed after” July 1, 2012.  If the Act applied retroactively to the Maronda case, the association’s cause of action could be barred by the Act. The Florida Supreme Court concluded that even though the Legislature intended the Act to be applied retroactively, it could not be applied retroactively  because of the constitutional prohibition against the impairment of vested contract rights.

Thus, what the Florida Supreme Court  giveth to  a  homeowner who purchases a new construction home, the Florida Legislature taketh away (at least to the extent of any cause of action accruing on or after July 1, 2012).

WHEN IS A NON-FINAL ORDER A FINAL ORDER?

The Florida Rules of Appellate Procedure designate all post-final judgment orders as “non-final” orders for purposes of an appeal. The Florida Rules of Civil Procedure only authorize motions for rehearing of “final orders”. Can a post-final judgment order  simultaneously be a “final order” under the Rules of Civil procedure so that the trial court can rehear the matter,  and be a “non-final order” under the Rules of Appellate Procedure, or is every post-final judgment order a “non-final order” which is not subject to rehearing?  In the recent case of Popescu v. Laguna Master Association, Inc., 126 So.3d 449 (Fla.4th DCA 2013),  the Court held that a post-final judgment order can be a “final order” under the Rules of Civil Procedure subject to a valid motion for rehearing, if it adjudicated  separate and distinct rights of the parties that arose subsequent to the entry of the final judgment.  Thus, such a “final order” is subject to rehearing by the trial court under the Rules of Civil Procedure even though the same order  is classified as a “non-final order” under the Rules of Appellate Procedure.

In Popescu,  a homeowner’s association obtained a final judgment of foreclosure on a claim of lien for unpaid assessments.  However, after the final judgment of foreclosure had been entered but before the foreclosure sale occurred, the lot owner sold the lot to the buyer in a short sale transaction.   The association was paid off (a redemption),  but due to mistake, accident, or clerical error, the foreclosure sale was not canceled. The foreclosure sale was conducted by the Clerk of Court, the lot was sold to a third  party bidder, and the certificate of title was issued.

Thereafter, the association requested the trial court to vacate the foreclosure sale and certificate of title based upon the redemption and mistake. The trial court denied the motion to vacate and  the  association requested the court to rehear the motion to vacate to correct the court’s erroneous ruling.   The trial court reconsidered its denial of the motion to vacate, and set aside the order denying the motion to vacate and granted rehearing. The Appellate Court denied the foreclosure sale purchaser’s attempt to prevent the trial court from rehearing the motion to vacate. The Appellate Court held that because the redemption and mistake occurred after the  final judgment was entered, the order denying the motion to vacate  qualified as a “final order” under the Florida Rules of Civil Procedure and was subject to rehearing, notwithstanding the fact that is is classified as a “non-final order” under the Florida Rules of Appellate Procedure.

[Note: Mr. Rubin successfully represented the Appellee Association on appeal in this reported Case. On remand, the trial court vacated the foreclosure sale and certificate of title based on the pre-sale exercise of the right of redemption (i.e., the right of redemption was exercised by  the short sale purchaser when the short sale closed). See Popescu v. Laguna Master Association, Inc., 184 So.3d 1196 (Fla. 4th DCA 2016, rev. den. ___ So.3d ___(Fla. 2016).]

It Means What It Says But What Does It Mean?

In a residential development governed by a homeowner’s association, it is common for the declaration of covenants and restrictions to require lot owners to properly maintain their lots in good condition. Typically, the association will periodically inspect the lots, and if a lot is not in compliance, it will send a written notice of violation to the lot owner to correct the deficiencies. If the lot owner does not comply, the declaration grants the association the authority to sue the lot owner to obtain a court order compelling the lot owner’s compliance (i.e. injunctive relief).

In Boyle v. Hernando Beach South Property Owners Assoc., Inc., 38 Fla. L. Weekly D2072 (Fla. 5th DCA 10/04/13), the Court held that the Association failed to sustain its burden to prove the lot owner breached the declaration provision which required the lot owners to “keep their lots in a neat, clean, and orderly condition.” The Association submitted sworn proof that the lot owner failed to properly maintain his lot because the “landscaping and trees need to be trimmed and properly maintained.” The Court stated that the Association failed to show how the landscaping and trees had not been properly maintained  and trimmed, i.e. , was the grass dead or uncut, were the trees dead, or how were the trees untrimmed?  The Association’s lack of evidence led the Court to conclude that it was unclear how the lot owner violated the declaration and what steps he was supposed to take to bring his lot into compliance. Thus, while the words used in a declaration may have a clear meaning, the party enforcing the provision has the burden to clearly show how it has been violated and what the breaching party must do to come into compliance.

MRTA: When is an Easement NOT an Easement?

Florida’s Marketable Record Title Act (“MRTA”), codified in Chapter 712 of the Florida Statutes, eliminates stale claims which may encumber title to land. Unless an interest in the land is properly preserved in the chain of title, or there is a MRTA exception, generally speaking, the interest in land created by a deed or other instrument recorded prior to the root of title deed (a deed which has been recorded for at least 30 years before the date of the title search), and unrecorded interests in land, are extinguished by MRTA and can be ignored by the title examiner. One such MRTA exception is for “unrecorded easements . . . .  so long as the same are used . . . .”

Florida Statute Section 704.08 grants to relatives of any person buried in a cemetery an “easement for ingress and egress for the purpose of visiting the cemetery at reasonable times and in a reasonable manner.” A cursory comparison of the MRTA exception language and the language in 704.08 (both refer to “easements”) might lead one to reasonably conclude that the easement created by 704.08 is a MRTA exception. Not so, says the Third District Court of Appeal majority.

In an unusual factual scenario, during construction of a new housing project, an abandoned cemetery and human remains were unearthed. This caused the developer to incur expenses to redesign the housing project. The developer sued the company that issued the title policy and alleged it was entitled to recover those expenses because the title policy did not list the cemetery or the 704.08 easement right as exceptions to coverage. No relatives of the persons buried in the cemetery ever attempted to exercise or actually exercised the 704.08 ingress or egress easement right to visit the cemetery.  The Court, in Village Carver Phase I, LLC v. Fidelity National Title Ins. Co., 38 Fla.Law.Wkly D2078 (Fla. 3rd DCA 10/04/13), upheld the trial court’s dismissal of the complaint against the title company on several grounds. However, interestingly, the majority opinion stated that: “Section 704.08 does not create an interest in real property. It creates nothing more than a personal privilege, exercisable in the future if (1) a relative . . . of a person buried in the cemetery comes forward, and (2) he or she seeks to visit the cemetery.”

It is difficult to understand why the Court concluded that the interest created by 704.08 is not an easement (which is an interest in land), when 704.08 expressly states that the relative of the person buried in the cemetery “shall have an easement . . . “ It seems that even if  704.08 creates an easement, it was extinguished by MRTA because the unrecorded easement was not used. Senior Judge Schwartz dissented. For now though, the “easement” stated in 704.08 is not an easement.

 

Hell Hath No Fury Like a Cohabitant Scorned

In Florida, common law marriages are not recognized. But can a court award one party in a cohabitation relationship an interest in the other person’s solely owned real estate after the relationship turns sour? Under certain circumstances, a court can impose a constructive trust to do equity between unmarried cohabitants. But the burden of proof and the elements of the claim are very difficult to prove. The cohabitant asserting the claim must prove beyond a reasonable doubt by clear and convincing evidence that: (1) a promise was made to grant an interest in the real estate; (2) there was a transfer of some property by the cohabitant to the other person and the cohabitant relied on the transfer in creating the interest; (3) a confidential relationship existed; and (4) the other person was unjustly enriched.

In the recent case of Castetter v. Henderson, 38 Fla.L.Weekly D1166 (Fla. 5th DCA May 24, 2013), the Court reversed a trial court decision which imposed a constructive trust in favor of a woman and against her former live in boyfriend’s solely owned real estate. She testified that she had cooked and cleaned for the both of them, had paid all of the expenses related to their son, and had paid their food and cleaning expenses for a period of 15 years. She argued that by paying for those expenses, her former boyfriend was able to invest his money in real estate. The Appellate Court found that the woman made no financial contribution to the properties purchased and she did nothing to improve or manage the properties: “defraying mutual living expenses is not enough to create an interest in real estate.” Not only did the woman lose her constructive trust on appeal, but as a result of the reversal of the trial court’s decision, she was ejected from the former live- in residence.

Timing is Everything for City Code Enforcement Lien Priority

Florida’s recording act, codified in Chapter 695 of the Florida Statutes, generally grants priority to an interest in real property based upon when the instrument creating that interest has been recorded. First in time is first in right. However, there is an exception to this priority scheme:  when the person who records first had knowledge at the time he acquired the interest in the real property of the claim of a person who records after him, the person who records after him (assuming he did not have knowledge of the first person’s claim when he acquired his interest in the real property), has priority over the person who recorded first!  Thus, Florida’s recording act is called a “race notice statute”.

Chapter 162 of the Florida Statutes allows cities to enforce their codes against their residents and the real property that they own. Code enforcement matters typically involve the enforcement of building, zoning, and fire safety codes.  A lien against real property is created when the certified code enforcement order is recorded. However, many cities in Florida have enacted ordinances which grant super priority to a code enforcement lien; it is superior to all prior recorded interests in real property (with few exceptions), including prior recorded mortgages.

The cities justified the enactment of the super priority lien provision in their ordinances based on their “Home Rule Powers” (Article VIII of the Florida Constitution). Cities can enact ordinances for purposes of exercising their municipal powers, “except as otherwise provided by law.” In 2006, the Florida Supreme Court stated that a city “may legislate concurrently with the Legislature on any subject which has not been expressly preempted to the State.”

As you can imagine, lenders (and other prior recorded interest holders) were not happy with these super priority code enforcement liens. The lender would not know,  whether years after the mortgage was recorded,  a super priority code enforcement lien might be recorded and take a priority position over the lender against property which has  limited equity. In addition, a title insurance policy contains a standard exception for governmental laws and ordinances, so the lender is not covered for this type of claim by title insurance.

Wells Fargo Bank decided to challenge the asserted super priority of a city code enforcement lien. In City of Palm Bay v. Wells Fargo Bank, N.A., 38 Fla.L.Weekly S322 (Fla. May 16, 2013), the Florida Supreme Court held that Chapter 695 of the Florida Statutes is the legislative scheme that governs recording priority, and the City’s Ordinance was inconsistent with that scheme. The Court reasoned that when a municipal ordinance is inconsistent with a Statute, then it is not concurrent, and is invalid. The Court would not allow a municipality to “destroy rights that the Legislature established by state law.” The Palm Bay Ordinance was struck down because it was “inconsistent” with State law.

The dissent argued that there is nothing in Chapter 695 or Chapter 162 which expressly preempts city code enforcement lien priority in the statutory scheme and  that the legislature has enacted numerous exceptions to the “first in time first in right” recording rule, such as for special assessment liens (Chapter 170), tax deeds (Chapter 197), condominium liens (Chapter 718), and construction liens (Chapter 713).

For now, however, with respect to the priority of municipal code enforcement liens, timing is everything.