Real Property & Title Insurance Update: Weeks Ending December 2 & 9, 2016

REAL PROPERTY UPDATE

Deficiency/Subject Matter Jurisdiction: approving the 3d DCA's opinion that an assignee of a foreclosure judgment can maintain a separate action for deficiency under Florida Statutes, Section 702.06, even when foreclosure court retains jurisdiction to adjudicate deficiency in foreclosure action - Dyck-O'Neal, Inc. v Konstantino, Case No. 2D15-4064 (Fla. 2d DCA Dec. 9, 2016) (reversed and remanded; certifying conflict with Higgins v. Dyck-O'Neal, Inc., 41 Fla. L. Weekly D1376 (Fla. 1st DCA June 9, 2016), certified)). Default: Florida Rule of Civil Procedure 1.500 precludes entry of default when defendant has served response to complaint, even if response was not filed within the time granted by the trial court - Sansbury v Wells Fargo Bank, N.A., Case No. 5D15-1956 (Fla. 5th DCA Dec. 9, 2016) (reversed and remanded). Landlord-Tenant/Self-Help/Wrongful Eviction: landlord that removed Tenant pursuant to self-help provisions in lease agreement was liable for wrongful eviction for violating Section 83.05(2), Florida Statutes, which provides that Landlord may only recover possession of a rented premises (a) In an action for possession under s. 83.20, or other civil action in which the issue of right of possession is determined; (b) When the tenant has surrendered possession of the rented premises to the landlord; or (c) When the tenant has abandoned the rented premises - Palm Beach Florida Hotel and Office Building Limited Partnership, et al. v Nantucket Enterprises, Inc., Case No. 4D14-3450 (Fla. 4th DCA Dec. 7, 2016) (affirmed, in part, reverse, in part and remanded). Landlord-Tenant/Conversion: landlord could not convert Tenant's newly remodeled space because real property cannot be converted - Palm Beach Florida Hotel and Office Building Limited Partnership, et al. v Nantucket Enterprises, Inc., Case No. 4D14-3450 (Fla. 4th DCA Dec. 7, 2016) (affirmed, in part, reverse, in part and remanded). Foreclosure/Conditions Precedent: a breach of a condition precedent does not preclude the enforcement of an otherwise valid contract, absent some prejudice - Liberty Home Equity Solutions, Inc. v Raulston, et al., Case No. 4D15-3652 (Fla. 4th DCA Dec. 7, 2016) Foreclosure/Standing: attaching a copy of the note to the complaint and presenting the original note in the same condition at trial creates an inference that the plaintiff was in actual possession of the note at the time the complaint was filed, which, absent evidence to the...

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