CLOSE

Changing Condo Declaration

If the seller/developer has changed the condo declaration so that what is being delivered is not what was originally promised, you may be able to walk away from the contract and still get a refund on your deposit money. A condo declaration is a set of restrictive covenants (deed restrictions) that apply to Unit ownership in condominiums. The general rule is to record them in a legal document called a “Declaration of Condominium” or “Declaration of Restrictive Covenants.” This is recorded at the county Register of Deeds office. The declaration should describe the nature of the project in detail, including construction material used, size and number of buildings, stories, basements and units etc. It also establishes rules to govern the use of the units and common areas, describing them in as much detail as possible. The declaration should also state the purpose of the units, and may limit the property to residential use, require that units be a minimum size and certain architectural style, etc.

An example of what a condo declaration usually contains is:

(1) A legal description of the land or, for a water slip condominium property, of the land and the land under the water area;
(2) The name of the condominium property, which shall include the word “condominium”;
(3) The purpose of the condominium property, the units and recreational and commercial facilities situated in the condominium property, and any restrictions upon the use of the condominium property;
(4) A general description of buildings, stating the principal construction materials and the number of stories, basements, and units. The declaration for a water slip property shall also contain a general description of each water slip and of the piers and wharves forming each water slip submitted to the provisions of this chapter;
(5) The unit designation of each unit and a statement of its location, approximate area, the immediate common element or limited common element to which it has access, and any other information necessary for its proper identification;
(6) The purpose of the condominium, whether it is to be used for residential purposes, or otherwise;
— Source here.

A developer is required to provide all amenities described in the declaration. There can be no substantial change in the actual unit from what has been described in the declaration. The construction material, the dimensions of units, swimming pools and other amenities, basements and other areas must conform to the condo declaration. If they do not, then the buyer has a case against the developer, and can get a refund of her deposit.

The Magnuson-Moss Warranty Act

This is a federal law enacted in 1975, and dealing with the governing of warranties on consumer products, that too has a bearing on condos. The developer can be sued for any violation of common law or statutorily imposed warranties of habitability, and warranties against defect may be subject to various federal laws including the Magnuson-Moss Act. Notably, this Act provides that under its terms, ambiguous statements in a warranty are construed against the drafter of the warranty, in this case, the developer, and can be cause for suit for recovery of deposit money.

CLOSE

CLOSE

Need To Resolve an Intellectual Property Dispute?

At Morrison Law Associates, our team of attorneys have the experience to favorably resolve even the most complex intellectual property disputes. When you seek our help, you will receive hands-on attention from lawyers who have experience litigating with big law firms on major issues. From the start of your case to the finish, you will have a seasoned attorney on your side. You will never be handed on to a new associate or paralegal. You will get representation that is calculated to achieve a good result.

Can You Get High-Quality Representation at a Reasonable Price?

Certainly. Our firm will create a special fee structure based on your special circumstances. Let us explain more about our individualized structure for fees.

All Kinds of Intellectual Property Disputes

Iintellectual property has value that can be protected. Whether you have your IP used by others without permission, or if you have been accused of infringing on IP belonging to another, we can assist you.

Our legal team will have the knowledge needed to take on all sorts of disputes over intellectual property.

* Copyright litigation
* Trademark and trade dress
* Patents

Careful Consideration Is Important In All Disputes.

Our team can represent original creators of all sorts, as well as the corporations, businesses and managers authorized to use their IP. When you decide for us to advocate your interests, we will learn all about you, your intellectual property and your goals. With diligent attention to your concerns, we will ensure that at each stage, appropriate techniques will be used to support the best possible outcome. As we progress, CLOSE attention will be given to doing the best service for your plans.

Free Consultations are Available. Call 1 877 310-1420.

We will talk over your IP issues, and you can learn how we can handle your IP problems.

CLOSE

CLOSE

Real estate contract litigation, in Florida and elsewhere, involves general laws of contract as well as particular statutory and common law rules. The same principles of law that govern contracts in general apply to contracts that are purchase and sale agreements, installment land contracts, options to purchase, leases, or other types of instruments.

It is therefore imperative to consider both the general laws of contract as well as particular statutes relevant to the matter at hand in order to provide a comprehensive analysis of a legal dispute. For example, rules applicable to contract interpretation, requirements for contract formation and enforceability, and other such issues involving general contract laws are important in litigation involving real estate agreements. Again, particular state laws, or those that do not accept aspects of the Uniform Commercial Code (for example, the most recent revision of UCC § 2-201 increases the triggering point for the UCC Statute of Frauds to $5,000, but as of 2008 no U.S. state has adopted revised Section 201.) can also become important.

Essential to the formation of a contract is the concept of a “meeting of minds” where written letters specifying intent and provisions of exchange form a contract by offer and acceptance [Florida Statute 680.206]. An Offer is a written or spoken statement indicating a person’s willingness to be held to a certain commitment upon acceptance. A good offer presumes two things; one, that it is serious, and two, that it identifies the object offered in a manner such that a court can enforce the contract or determine damages if the contract is broken. A valid Acceptance of an offer requires, among other things, that the offer be still good, that its subject matter not be illegal, or be in the condition in which it was described in the offer, etc. Each of these issues can be crucial in a litigation to determine enforceability of a real estate contract.

Other commonly litigated issues in real estate contract disputes include applicability of the statute of frauds, acts constituting breach, questions concerning title to real property, and the availability of particular remedies. Only the first of these is discussed here; we will address the other issues in separate white papers.

The Statute Of Frauds

The statute of frauds provides that certain types of contracts are unenforceable unless evidenced by a writing. Several types of real estate contracts come within the statute of frauds. [Civ. Code §1624]. Under Florida law, contracts involving goods priced at $500 or more, promises to pay the debts of another, promises made in consideration of marriage, and promises that cannot be fulfilled within one year must be written to be valid. Similarly, a personal representative’s promise to pay the debts of an estate, a promise to pay a debt barred by the statute of limitations, home solicitation sales, home improvement contracts, contracts concerning an interest in land, health care guarantees, newspaper subscriptions, and credit agreements must be written.

Florida Statute 672.201 describes the statute of fraud in this manner:

(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his or her authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.

(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within 10 days after it is received.

Pertinent to real estate litigation, the following are further situations where the statute of fraud becomes applicable:
(1) an agreement to lease real property for a period longer than 1 year, or to sell real property or an interest in real property. [Civ. Code §1624(a)(3); see Civ. Code §1091(estate in real property other than estate at will or for term of 1 year or less can be transferred only by operation or law or by instrument in writing)];

(2) an agreement authorizing another for compensation to purchase or sell real estate, to lease real estate for more than 1 year, or to find a purchaser, seller, lessee, or lessor of real estate for a term of more than 1 year. [Civ. Code §1624(a)(4); see Civ. Code §§1091, 2309]; and
(3) an agreement by a purchaser of real property to pay a debt secured by a mortgage or deed of trust, unless assumption of the debt by the purchaser is specifically provided for in the conveyance of real property. [Civ. Code §1624(a)(1)].
(4) contracts creating a joint tenancy [Civ. Code §683]
(5) contracts which by their terms are not to be performed within 1 year [Civ. Code §1624(a)(4) and
(6) agreements to arbitrate disputes [Code Civ. Proc. §§1280(f), 1281, 1281.2]

The “Equal Dignities Rule” expands on the statute of fraud by requiring an authorization for someone performing certain acts for another person to have been appointed with the same formality as required for the act the representative is going to perform. This means, for example, that if a principal authorizes someone to sell the principal’s house or other real property, and the law requires a contract for the sale of real property to be in writing (which is required under the “Statute of Frauds” in most U.S. jurisdictions), then the authorization for the other person to sign the sales contract and deed must be in writing too. [Civ. Code §2309]

Exceptions To Statute Of Frauds Requirements

A broad application of this statute can have inequitable consequences, considering which a number of exceptions to it have evolved in common law and by legislature. Some of these are:

Equitable Estoppel: Equitable estoppel operates to relieve oral contracts from the statute of frauds and makes them binding where: (1) the defendant represents by words or conduct that he or she will stand by the agreement and the plaintiff detrimentally relies on this representation[ Fl. St. 672.201.3(b)

Unconscionability: Unconscionable injury to the plaintiff or unjust enrichment of the defendant would result from a refusal to enforce the agreement

Justifiable Reliance: Where the owner of real property has changed his or her position in reliance on an oral purchase offer, the buyer may be estopped from avoiding the contract on the basis of the statute of frauds.

Executed Oral Agreements: In addition, executed oral agreements are exempt from the statute. Where a bilateral oral contract has been fully executed by one party, the remaining promise is outside the statute of frauds and the party who has performed may enforce the agreement against the other party.

Partial Performance: Although an estate or interest in real property, other than a lease for a term of 1 year or less, can be created only by a signed writing [Code Civ. Proc. §1971], this does not abridge the power of any court to compel the specific performance of an agreement in case of partial performance of the agreement [Code Civ. Proc. §1972]. Partial performance in this context generally means that the purchaser or lessee has taken actual, open, and notorious possession of the property.

Fraud: If the fraud of one of the contracting parties prevents a contract within the statute of frauds from being reduced to writing, the contract may be enforceable against the fraudulent party. Any other party who is led by the fraud to believe that the contract is in writing and acts on that belief to his or her prejudice may enforce the contract against the fraudulent party. [Civ. Code §1623] Further, even where an oral agreement is unenforceable as a contract, the misled party may bring a separate action for fraud.

CLOSE

CLOSE

What is jumbo loan?

A jumbo loan is simply a home loan for property in the continental United States that exceeds $417,000, whether the funds are used to purchase a new home or to refinance an existing mortgage. For residents of Alaska, Hawaii, Guam, and the U.S. Virgin Islands, mortgages are not considered to be jumbo loans until they exceed $625,000. Jumbo loans are simply mortgage loans made for amounts that exceed the limit for conforming home loans.

What is a foreclosure?

Foreclosure is the legal and professional proceeding in which a mortgagee, or other lienholder, usually a lender, obtains a court ordered termination of a mortgagor’s equitable right of redemption. Usually a lender obtains a security interest from a borrower who mortgages or pledges an asset like a house to secure the loan. If the borrower defaults and the lender tries to repossess the property, courts of equity can grant the borrower the equitable right of redemption if the borrower repays the debt. While this equitable right exists, the lender cannot be sure that it can successfully repossess the property, thus the lender seeks to foreCLOSE the equitable right of redemption.

Jumbo loan foreclosures

Foreclosure proceedings vary from state to state. In states where mortgages are used, homeowners can end up staying in the property for almost a year; whereas, in states where trust deeds are used, a homeowner has less than four months before the trustee’s sale. Almost every state provides for some period of redemption. This means that the homeowner has an irrevocable right during a certain length of time to cure the default, including paying all foreclosure costs, back interest and missed principal payments, to regain control of the property. Many states also require that sellers give to buyers certain disclosures regarding equity purchases. Failure to provide those notices and to prepare offers on the required paperwork can result in fines, lawsuits or even revocation of sale.

A large number of the jumbo loans are made out in Florida, and buyers not only from various parts of the US but also from the European Union flock to Florida for our sunny weather and beautiful oceanfront properties. But the recent downturn in the economy has created a lot of problems:

About 6.9% of prime “jumbo” loans were at least 90 days delinquent in December 2008, according to LPS Applied Analytics, a mortgage-data research firm. Jumbo mortgages average about $750,000 and can run as high as $5 million or more. The obvious result of these nonperforming loans is less jumbo lending and less money available to prop up high end Miami real estate. Florida is in a league of its own as jumbo loans are running at about a 17% delinquency rate overall! It goes without saying that this insane delinquency rate implies massive future foreclosures and consequently, downward price pressure on high end real estate.

CLOSE