Real Estate, Financial Services and Title Insurance Update: Week ending October 8, 2021 | Carlton Fields


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  • Bert Harris Law: Certifying whether the 2021 amendment to the Bert J. Harris Jr. Private Property Rights Protection Act clarifies existing law so that the plaintiff can maintain an action under the law when the plaintiff owned a property where the plaintiff filed a claim but was dispossessed of the property before trial – Dean Wish, LLC v. Lee Cnty., No. 2D19-4843 (Fla. 2d DCA October 6, 2021) (confirmed; question certified)

  • Ownership / Registration Link: Pursuant to section 28.222 (3) of the Florida Statutes, which deals with when an instrument must be registered, the issuance of a writ of mandamus was appropriate where the clerk of the court failed to fulfill the legal obligation. to register a deed, which here was a claim of lien on the property under section 713.08 (5), upon payment by the obligee within the relevant statutory time limit – Phillips v. Pritchett Trucking, Inc., No. 1D20-2068 (Fla. 1st DCA Oct 6, 2021) (confirmed)

  • Registration : The clerk amalgamated the problems of when an instrument is must be registered, which is dealt with by Article 28.222 (3), Florida Statutes, and when an instrument is deemed registered, which is covered by section 695.11, Florida Statutes – Phillips v. Pritchett Trucking, Inc., No. 1D20-2068 (Fla. 1st DCA Oct 6, 2021) (confirmed)

  • Co-ownership association / Common elements (limited): The trial court erred in holding the developer liable for utility expenses related to laundry when the declaration of co-ownership did not change the relevant expense allocation, which is codified in Chapter 718, Florida Statutes, from the condominium association to the developer, and where the First Amendment to the statement was clear and unambiguous that the developer had the unilateral right to reject any other amendment, including one aimed at shifting the burden of the aforementioned expenses to the developer – First Equitable Realty III, Ltd. vs. Grandview Palace Condo. Ass’n, Inc., # 3D20-1807 (Fla. 3d DCA October 6, 2021) (partially confirmed; partially reversed; referred)

  • Deed / Rental by the whole: An assignment to spouses as husband and wife, even if said assignment does not describe or refer to the owners relationship as matrimonial, creates a tenancy in its entirety in the absence of express language demonstrating an intention contrary – Ramos v. In re Estate de Ramos, n ° 3D21-818 (Fla. 3d DCA October 6, 2021) (inverted and returned)

  • Deed / Rental by the whole: When the wife died her half of the interest passed to her then-living husband, and when the husband died four years later the husband’s now entire interest in the property went to his estate – Ramos v. In re Estate of Ramos, n ° 3D21- 818 (Fla. 3d DCA October 6, 2021) (inverted and returned)

  • Land use / Due process: Since its examination of the second-level certiorari is limited to whether the lower court granted due process, and after finding that the petitioner had been informed of the proceedings and the opportunity to be heard in those proceedings , the court dismissed certiorari’s motion for writ seeking to overturn the municipal commission’s approval of a decision by the city’s historic preservation council – Cerda v. City of Coral Gables, n ° 3D21-1064 (Fla. 3d DCA October 6, 2021) (refused)

  • Obligation to defend oneself: Title insurer did not err in denying defect of title claim because insured’s claim was late – Hayward Prop., LLC v. Commonwealth Land Title Ins. Co., No. 4: 17-cv-06177 (ND Cal. Sept. 30, 2021) (rendering summary judgment in favor of title insurer)

  • Obligation to defend yourself / Fraudulent bank transfer: The title agency that lost funds due to a fraudulent wire transfer instruction was unable to establish a covered loss under its cyber protection package policy because, among other reasons, it failed to authenticate the transfer in accordance with the procedures outlined in the policy – Star Title Partners of Palm Harbor, LLC v. Ill. Union Ins. Co., No. 8: 20-cv-02155 (MD Fla. September 1, 2021) (rendering summary judgment against the title agency)

  • Renewal judgment: The title insurer, as judgment creditor and assignee of an unsatisfied 1998 judgment, has established the necessary criteria to be entitled to a renewal of judgment – First am. Title Ins. Co. v. Appelbaum, No. 507105/20 (NY Sup. Ct. Oct. 4, 2021) (rendering summary judgment in favor of the title insurer)

  • To release: The title insurer is not entitled to compensation for the amount of the valuation firm’s settlement with the claimant because the title insurer did not have the burden of proving that part of the sum of settlement was attributable to the same injuries for which the title insurer was held responsible – FDIC v. Chicago Title Ins. Co., No. 20-1572 (7th Cir. August 31, 2021) (reverse and cross reference)

  • Interest before judgment: The court appointed receiver who obtained judgment against the title insurer who acted as escrow trustee for the fraudulent loan closing was not entitled to prejudgment interest – FDIC v. Chicago Title Ins. Co., No. 20-1572 (7th Cir. August 31, 2021) (reverse and cross reference)

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