Archives for June 2012

Real Estate Brokerage Agreements and the Statute of Frauds

Real estate brokerage agreements should be written and signed by all parties, even though a written agreement is not required by Florida law.  Written agreements enable consistent construction and better protect the rights of the parties. Generally, contracts may be either written or verbal. Florida, like every jurisdiction in the United States, has laws requiring […]

Risk of Loss During the Executory Period

The executory period is the period of time in a real estate transaction between the signing of the contract for sale and the closing of the property.  A key consideration during the executory period of any real estate transaction is which party bears the physical risk of loss of the property.  It is important to […]

Florida Corporate Law – The Business Judgment Rule

The business judgment rule has been traditionally applied to protect corporate directors from personal liability.  However, the presumption of correctness provided to directors under this rule is limited in nature under Florida law. In Florida, the business judgment rule has been codified in Florida Statutes 607.0830(1), which reads:   A director shall discharge his or […]

South Florida Real Estate Litigation – Adverse Possession

Adverse possession is a legal doctrine under which a person may gain ownership rights in a parcel of real property by occupying that parcel for a set period of time. It operates as an inverse of the statute of limitations that applies to an action in ejectment, a civil action that allows a landowner to […]

Florida Business Law – Partnerships by Estoppel

Partnerships Under Florida Law, a partnership is defined as “an association of two or more persons to carry on as co-owners a business for profit,” other than other types of business entities formed under statute (such as limited liability companies or corporations). Florida does not require any filing to form a partnership; what this means […]

Wrongful Act Doctrine (Schwartz v. Bloch)

Independent Expert Testimony Not Required Where Attorneys’ Fees are Claimed an Element of Compensatory Damages pursuant to the Wrongful Act Doctrine Mayan Schwartz v. Stuart E. Bloch, et al., No. 4D10-742 (Fla. 4th DCA June 6, 2012) The subject case came up on appeal after plaintiff, Mayan Schwartz, appealed a final judgment entered in favor […]

Restrictive Covenant Drafting and Enforceability

A party seeking to convey an interest in real property may desire to place a restrictive covenant on the interest, creating a legal obligation in the person or entity receiving the interest to either perform or refrain from performing certain actions.  Such a covenant may already operate on the property, inasmuch as they frequently “run […]

Florida Real Estate Litigation – Eminent Domain and its Limitations

Eminent Domain in Florida Fundamentally, eminent domain describes the power of the state to seize private property without the owner’s consent.  The property must be taken for some "public use" (utilities, highways, schools, or parks, for example), and under the 5th Amendment, “just compensation” is required to be paid to the property owner.  The power […]