In an unpublished opinion from the 11th Circuit Court of Appeals, a three-judge panel unanimously reversed summary judgment which had been entered in favor of a property management company — Paradise Beach Homes (“PBH”) — in a premises liability suit which alleged PBH failed to warn guests about the danger of diving off the pier into 3 foot deep, Santa Rosa Sound.

Case Background

Knoll, the injured party, was staying with friends in a short term vacation rental home in Pensacola Beach which included a 188 foot private pier. When she arrived shortly after midnight she ran down the length of the pier and dove head first into the water, suffering a severe spinal injury.

The Appeal

On appeal, the issue was whether the property management company knew or should have known of the dangers associated with diving off the property’s pier and therefore had a duty to warn of the shallow depth. The trial court found in favor of the property management company finding that there was no history of anyone diving head first off the pier and that the defendant did not build the pier. On appeal, the injured party argued that the property should have known of the dangers of diving because the homeowner had previously placed a “No Diving” sign on their pier.

Continue Reading No Diving: What You and Your Property Manager Should Know Could Hurt You

Under Florida law, a landlord has a statutory right to demand double rent from a tenant when the tenant refuses or fails to give up possession of leased premises at the end of the lease term. § 83.06(1), Florida Statutes. When a tenant holds over past the expiration of the lease, then the tenancy becomes a tenancy at sufferance and the tenant is considered a holdover tenant. However, a landlord is not automatically entitled to double rent from a holdover tenant until the landlord demands double rent from the tenant, even if the lease provides for it. If landlord does not demand upon tenant, then the tenant is only required to continue paying the original rental rate.

Failure to Vacate

These rules were illustrated in Lincoln Oldsmobile, Inc. v. Branch, 574 So.2d 1111 (Fla. 2d DCA 1990) (“Lincoln”). In Lincoln, the tenant, Bob Lincoln, Inc., failed to vacate property owned by landlord, William Branch and Roger Dean (collectively, “Branch”), after Branch refused to grant Lincoln a short lease extension to allow for construction of Lincoln’s new facility.

Continue Reading How/When Can I Get Double Rent From My Commercial Tenant?

Have you decided to sell your home? Perhaps you are considering to go it alone without the assistance of a realtor to potentially save thousands of dollars in commissions. Here are a few tips to keep in mind:

  1. Price Your Home Competitively. You may utilize online pricing calculators like Zillow’s Zestimate, or websites like Trulia, to assist you with determining what comparable homes sold for in your community. They are only estimates so you may want to obtain a competitive market analysis from a real estate agent, usually free, or hire a local home appraiser.
  2. Prepare Your Home. Make your home look great on both the exterior and interior. De-clutter and brighten up your home, clean it from top to bottom, and ensure it smells good.
  3. Draft Your Listing Ad. Your ad should be thorough, yet concise. Be sure to include important home facts such as the number of bedrooms, bathrooms and any upgrades and/or improvements. The photos of the home should be as appealing as possible. Considering hiring a professional photographer.
  4. Advertisement. Since so many buyers begin their search online, you should consider some popular websites such as Zillow, Trulia, HomeFinder, FSBO and Craigslist.
  5. Host an Open House. Once your home is listed for sale, host an open house. To prepare, visit a few open houses in the community and take notes. Create an information sheet with photos of your home for potential buyers or print copies of your ad from Zillow or the like. Schedule your open house on the weekend in the early afternoon.

Continue Reading 5 Tips for Selling Your Home Without a Real Estate Agent

Section 624.1055, Florida Statutes, is part of the recent Omnibus Insurance Bill, HB 301: Contribution Rights Among Insurance Carriers. This new legislation impacts those involved in Florida construction defection litigation and applies to claims, suits or other actions initiated after January 1, 2020.

Old Rule – No Right of Contribution

The longstanding rule in Florida has been that there is no right of contribution among insurance carriers for attorney fees incurred in defending a mutual insured. The rationale has historically been that each carrier owes a complete and independent obligation to provide a defense under the insuring policy, such that, by issuing the policy, the carrier did so without contemplation that it would be entitled to recover payment from another carrier for such defense costs. The Florida Supreme Court described the rationale for the current rule in the case of Argonaut Ins. Co. v. Maryland Cas. Co., 372 So.2d 960, 964 (Fla. 1979), as follows:

The Legislature has not seen fit to allow contribution for costs or attorney’s fees between insurance companies. If contribution for costs were allowed between insurance companies, there would be multiple claims and law suits. The insurance companies would have no incentive to settle and protect the interest of the insured, since another law suit would be forthcoming to resolve the coverage dispute between the insurance companies. This is contrary to public policy, particularly since the insured has been afforded legal protection and has not had to personally pay any attorney’s fees.”

New Legislation and Impact

Continue Reading New Legislation Impacting Florida Construction Defect Litigation

Do you remember the 80’s? I sure do, Blondie sang Call Me and The Empire Strikes Back came out and we learned that Darth Vader was Luke’s father (still unbelievable nearly 40 years later)! More importantly, the First District Court of Appeal remembers the 80’s and recently referred to a decision it handed down in 1980 when ruling on an inverse condemnation claim.

Who owns an inverse condemnation claim?

In the case from this summer, Robert and Susan Simon owned property in Jacksonville that included a pond into which storm water drained. After owning the property for more than ten years, the Simons decided it was time for the City of Jacksonville to maintain the pond. The Simons filed an inverse condemnation suit against the City, claiming that the City’s drainage of water into the pond amounted to a taking of the pond. The trial court disagreed, saying that if a taking had occurred, it took place years before the Simons acquired the property. (I have talked about inverse condemnation before on this blog.)

Continue Reading 1980 — still crankin’ out the hits…and the case law!

Did you know that liens can be filed on your real property without your knowledge or consent, even if they’re not valid? Did you know those liens can affect title to your property? Did you also know someone can create a fraudulent deed that gives your real property to someone else? It’s all very scary and, unfortunately, happens frequently. That’s why the Lee County Clerk of Courts recently launched a new Property Fraud Alert program.

The Property Fraud Alert program is completely free and allows subscribers to register their name (or any name) into the fraud alert system, and the system will alert registered users within 48 hours if a document has been recorded with the name of a registered user. This system will allow early detection of potentially fraudulent activity, which allows property owners to act fast and avoid issues down the road.

Why is the system so important?

Continue Reading New Property Fraud Alert Service Available to Lee County Property Owners

As a real estate attorney, one request I often receive from clients is to prepare a deed to transfer their real estate into either a trust (such a revocable trust for estate planning purposes) or an LLC (for liability purposes). At first glance, this may appear to be a simple request with no adverse effects or consequences. However, depending on when the property was acquired, transferring your property may have adverse effects on your owner’s title policy that you received when you purchased the property.

Florida Title Insurance Policy Forms

The Florida Office of Insurance Regulation (“Florida OIR”) governs the title insurance industry in several ways, including the rates charged and the title insurance policy forms issued by attorneys and title agents to purchasers of real estate.

Continue Reading Potential Title Insurance Pitfalls When Transferring Property into a Trust or LLC

Those involved in construction are likely familiar with a Notice of Commencement (NOC). For those who aren’t familiar, a NOC is a document typically required by Florida’s Construction Lien Law to be recorded in the County land records prior to constructing improvements.

When Not to File a Notice of Commencement

This is typically an innocuous administrative procedure which occurs along with permitting. However, not all construction requires a NOC, and problems can arise when one is erroneously recorded. As such, developers should educate their employees not to automatically record a NOC as a matter of course, or just because a contractor or someone at the permitting office tells them to.

Continue Reading Notices of Commencement for Infrastructure Improvements: Think Twice Before Filing

There are ways to do this, and I shared a few with the good folks in the Florida Association of County Engineers and Road Superintendents at their Annual Meeting in Orlando. They call themselves “FACERS, ” by the way, which is a rare case of an acronym that you can easily pronounce!

First things first, though: during my remarks, the crowd and I disposed of several myths: Continue Reading How to $ave Money as a Condemning Authority

With co-author Daumantas Venckus, Law Clerk

Sellers of condominium units often rely on their realtor to make sure the proper disclosures are made in the contract. The Florida Bar and Florida Realtors have adopted a form Condominium Rider which provides not only the disclosures required by the Florida Condominium Act, but also additional disclosures designed to cover some of the issues that aren’t immediately apparent or available to the buyer with respect to the condominium association.

While the information is helpful to the buyer, sellers need to be aware of what the disclosures mean and what their obligations are in order to avoid losing the buyer, or facing a potential misrepresentation claim.

Condominium Association Approval

The association may have the right to approve the buyer. If such right exists in the Condominium Declaration, the approval must be done so within a specified amount of days prior to closing. Both, the buyer and seller must make a diligent effort to obtain such approval. If such approval is not granted within the specified time frame, the contract shall terminate and the buyer will be refunded the deposit.

Right of First Refusal

Continue Reading Selling Your Condo? 7 Things to Know About the Condominium Rider to a Residential Contract