gavel.jpgThe Fourth District Court of Appeals of Florida recently affirmed the position that a property owner cannot knowingly ignore an impediment to the title of their property. In Nunes v. Allstate Investment Properties, Inc., (So.3d —, 2011 WL 3107801) the Personal Representative of the Estate of Kathleen L. Phillips, and Marilyn Ann Nunes, individually, (collectively “Nunes”), filed a declaratory action to determine Nunes’ right to certain property which she contended was wrongfully conveyed to the current property owners through a series of conveyances originating with a forged deed.

Nunes’ former son-in-law and husband forged a warranty deed transferring her interest in the real property to Allstate Investment Properties, Inc. (“Allstate”) on October 6, 2003. Allstate, not knowing that the deed was forged, transferred the property to a third party on December 25, 2003; and, the third party subsequently transferred the property to the current owner on December 15, 2004.

The court found that Nunes had actual knowledge of the forged deeds, which was discovered during the deposition of Nunes’ husband during divorce proceedings in May of 2004. After learning of the forgery, Nunes took no action to protect her interests in the real property. The current owner took title seven months later (December of 2004).

The 4th DCA cited Coram v. Palmer, 58 So. 721, 722 (Fla. 1912), wherein the Florida Supreme Court held:

If one man knowingly, though he does it passively by looking on, suffers another to purchase and expend money on land under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right.”

The court further cited Zurstrassen v. Stonier, 7[86] So. 2d 65, 68-69 (Fla. 4th DCA 2001), which held that the doctrine of equitable estoppel as set forth in Coram v. Palmer applies to forged deeds.

In affirming the lower courts decision that Nunes was equitably estopped from asserting any interest in the property, the 4th DCA stated that Nunes’ failure to timely assert her interest in the real property, although having numerous unrestricted opportunities to do so, was “tantamount to affirmative representation to the public as a whole that ‘go ahead and buy as I don’t have an interest in this property.'”

Bottom Line

Should you become aware of anything, be it a lien, encumbrance or purported conveyance affecting your property rights, you have the duty to timely take action in order to protect your property rights. In these situations, hesitation kills.