25 June

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Affidavits and Declarations Used for Summary Judgment

When a party moves or opposes a motion for summary judgment, the party will include an affidavit or declaration. The affidavit or declaration MUST be legally sufficient to have any weight. Do not take it from me. Take it from the recent appellate decision in Savoy v. American Platinum Property & Casualty Insurance, 48 Fla.L.Weekly D1241a (Fla. 4th DCA 2023) where the appellate court held the movant’s affidavit was insufficient because it was not based on the affiant’s personal knowledge. The legally insufficient reason served as a basis for the appellate court to reverse the summary judgment in favor of...

26 September

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Declaratory Judgment / Relief Considerations

Posted by David Adelstein

in Appeal, Trial Perspectives

There are a number of lawsuits where a party will assert a claim for declaratory judgment/relief. This is a claim oftentimes included in insurance coverage disputes, but is also asserted in a plethora of other types of civil disputes where a party asks the trial court to issue a declaration. To be legally sufficient, a complaint for declaratory relief must allege that: (1) there is a bona fide dispute between the parties; (2) the plaintiff has a justiciable question as to the existence or nonexistence of some right, status, immunity, power or privilege, or as to some fact upon which existence of...

25 October

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Declaration Cannot Take Away Common Elements in a Condominium

Posted by David Adelstein

in Trial Perspectives

The recent case of IconBrickell Condominium No. Three Association, Inc. v. New Media Consulting, LLC, 45 Fla. L. Weekly D2272a (Fla. 3d DCA 2020) is an interesting case discussing the common elements of a condominium where the trial court, affirmed by the appellate court, found that the Declaration governing a condominium violates Florida’s Condominium Act (Florida Statutes Chapter 718) because it “impermissibly divested residential unit owners of their undivided share in the common elements of the condominium.” Because the Declaration took away common elements from residential unit owners, it was determined that doing so was contrary to the law. The...

25 January

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The Declaration of Condominium “Says what It Says”

Posted by David Adelstein

in Trial Perspectives

There are lawsuits that don’t make sense. They just don’t. Granted, we do not know all of the ins-and-outs of the lawsuit, but the facts described in the case give an aura of irrationalness by one of the parties. Here is one – in what appears to be a condominium association taking an unreasonable position giving the unit owner no choice but to sue. In Cool Spaze, LLC v. Boca View Condominium Association, Inc., 45 Fla. L. Weekly D165a (Fla. 4th DCA 2020), a purchaser bought a unit in a condominium. He transferred the unit to a limited liability company he...

24 August

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Comply with the Dispute Resolution Provision in Your Contract

Posted by David Adelstein

in Trial Perspectives

Many contracts have dispute resolution provisions. If not, they should. It is important that dispute resolution provisions are reviewed and complied with PRIOR TO the initiation of a dispute. Failure to comply could result in you being “S*** Out of Luck” with your claim, as exemplified in the recent opinion in Guan v. Ellingsworth Residential Community Association, Inc., 44 Fla. L. Weekly D2155a (Fla. 5thDCA 2019). This case involved a dispute between a homeowner and her homeowner’s association. There was a Declaration of Covenants recorded in the public records. The Declaration, no different than any Declaration, created a contract between a...

28 June

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Condominium’s Declaration is a Contract

Posted by David Adelstein

in Trial Perspectives

A condominium’s declaration is a contract. As a unit owner, it serves as your contract and will govern your rights with your condominium association. Just like any contract, disputes arise between a unit owner and the association regarding the interpretation of the declaration. And, no different than any contract, the interpretation of a declaration is reviewed under a de novo standard of appellate review. See Lenzi v. The Regency Tower Ass’n, 43 Fla.L.Weekly D1397a (Fla. 4th DCA 2018). Lenzi serves as an example of a dispute involving a condominium unit owner and his association regarding the interpretation of a provision in...

29 April

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Strict Construction of Restrictive Covenants

Posted by David Adelstein

in Trial Perspectives

Restrictive covenants are to be strictly construed. Restrictive covenants show up in Declarations or Covenants recorded in the public records that restrict a landowner’s (or unit owner's) use to do something with his/her property. Just keep in mind that a restrictive covenant will be strictly construed in favor of the landowner. See Leamer v. White, 156 So.3d 567, 572 (Fla. 1st DCA 2015). Hence, the precise language of the restrictive covenant is important because of the requirement of strict construction. An example of such strict construction can be found in the recent opinion of Santa Monica Beach Property Owners Association, Inc....