Do Yourself a Favor: Get a Court Reporter at that Impactful Hearing

In a recent article, I discussed a trial court granting a defendant’s motion to discharge a lis pendens. The plaintiff appealed by filing a petition for a writ of certiorari since the discharge of a lis pendens would constitute irreparable harm to support certiorari relief. However, at the hearing with the trial court on the motion to discharge the lis pendens, there was no court reporter. As a result, the appellate court applied the presumption of correctness to the trial court’s ruling: "[T]he transcript is necessary for our review of the issue alleged, particularly when [the defendant] asserts that [the plaintiff's] entitlement...

05 June

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Purchase-and-Sale Contract: Your Right to Modify Them

Posted by David Adelstein

in Trial Perspectives

Real estate purchase-and-sale contracts govern the buyer’s and seller’s rights in the transaction. Although standard form contracts are utilized, this does not mean modifications cannot be made. In numerous cases, modifications should be made to clarify the intent of the parties to the transaction. In a recent case, Inlet Colony, LLC v. Martindale, 47 Fla.L.Weekly D1175a (Fla. 4th DCA 2022), the purchase-and-sale contract had a drop dead closing date. There was an addendum to the contract with specific closing terms that stated: Seller and Buyer make the following terms and conditions part of the Contract; Closing will occur [the] later of...

11 December

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Determining whether Lis Pendens Against Property is Appropriate – Fair Nexus

Posted by David Adelstein

in Trial Perspectives

When a lis pendens is recorded against property and the lawsuit is NOT founded on a duly recorded instrument and is NOT based on a construction lien, the other party will, and should, move to discharge the lis pendens. This will oftentimes require an evidentiary hearing where there court will determine whether there is a fair nexus to support the lis pendens, and if so, an amount associated with a lis pendens bond for the party that recorded the lis pendens to post. In determining whether a lis pendens against property is appropriate: The relevant question for the trial court, and the...

23 February

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Evidentiary Hearing when Lis Pendens NOT based on Duly Recorded Instrument

Posted by David Adelstein

in Appeal, Trial Perspectives

A lis pendens serves as a cloud against real property. A lis pendens will be recorded by a plaintiff when there is a dispute concerning affected real property. A party may record a lis pendens if it is foreclosing on a mortgage or lien or if the lawsuit simply pertains to the real property. If a lawsuit is NOT based on a duly recorded instrument such as a mortgage or a lien, a defendant should move to discharge the lis pendens and/or require the plaintiff to post a lis pendens bond to cover the defendant’s damages if the lis pendens...

16 April

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Damages Caused by Wrongful Recording of Lis Pendens (Not Founded on Instrument or Statute)

Posted by David Adelstein

in Trial Perspectives

What are the damages caused by the WRONGFUL recording of a lis pendens, and I am referring to a lis pendens NOT founded on a duly recorded instrument (e.g., not founded on a mortgage) or a statute (e.g., not founded on a construction or assessment lien)? These are damages that should be accounted for in a lis pendens bond. The recent opinion in LB Judgment Holdings, LLC v. Boschetti, 44 Fla.L.Weekly D693a (Fla. 3d DCA 2019), relying on Haisfeld v. ACP Florida Holdings, Inc., 629 So.2s 963 (Fla. 4thDCA 1993), explained: Haisfield looks back at losses that were actually suffered by a property...

09 June

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Risk in Purchasing Property Subject to a Pending Foreclosure and Lis Pendens

Posted by David Adelstein

in Trial Perspectives

When real property is the subject to a pending foreclosure action where there is a lis pendens (a formal notice), a buyer that purchases the property does so at his own risk because he is on notice that the property is subject to the foreclosure action [through the lis pendens]. Bymel v. Bank of America, N.A., 159 So.3d 345, 346 (Fla. 3d DCA 2015). The buyer is not permitted to intervene in the pending foreclosure action. See id. at 346-47. In a recent case, The Bank of New York Mellon v. HOA Rescue Fund, LLC, 43 Fla.L.Weekly D1312b (Fla. 2d DCA 2018),...