With 2007 done and gone, and 2008 upon us, I thought it a good opportunity to review some of this blog’s highlights from last year. When I started blogging about condo contract issues under federal and Florida law in the summer of 2007, there was a noticeable void in the quality and availability of information on the topic. Upon investigation, I came to see the reasons for this void as two-fold: (1) a relative scarcity of published case law on issues pertaining to condominium purchase agreements; and (2) the cyclical nature of the condo market itself, which means that condo contract issues get litigated only intermittently (that is, when the market takes a turn for the worse), with the last great litigation wave coming in the late 1980s-early 1990s.
Not surprisingly, the 4 all-time, most popular articles on this blog address the nuts and bolts of the two major sets of laws (state and federal) in play with respect to whether a right of cancellation arises under a Florida:
1. The Interstate Land Sales Full Disclosure Act: Is ILSA A Land Mine Ready To Explode For Condo Developers? (October 1, 2007). The focus of this article is on a little-understood federal law (“ILSA”) which applies to sales of condominiums, and which is intended to provide buyers with important disclosures before they purchase real estate. Notably, while ILSA requires developers to file a relatively onerous set of disclosures with the U.S. Department of Housing and Urban Development, and to provide the disclosures to buyers, the statute also contains a series of exemptions of which developers can and do try to avail themselves. But these exemptions can be difficult to understand and have been variously construed by different courts and at different times.
Judging from the reaction I’ve received, the confusion surrounding ILSA of paramount concern to buyers and developers alike. For example, today’s Daily Business Review (the daily South Florida legal newspaper) quotes my ILSA article for perspective in a story on Opera Tower, a Miami development which is currently facing a lot of lawsuits from buyers.
2. The Law Of Condo Contract Cancellation In Florida (September 6, 2007). This article examines the case law on the issue of what constitutes a “material and adverse” change under section 718.503(a)(1), Florida Statutes. Two older decisions from Florida appellate courts (BB Landmark and Chalfonte) suggest dueling interpretations of the statute’s meaning, while a case currently on appeal (D & T Properties v. Marina Grande Associates) is poised to determine the issue as it relates to unforeseen increases in assessments based on rising insurance and utilities costs.
3. The Battle For “Material And Adverse”: A Tale Of Two Florida Appellate Courts, And Two Florida Condominiums (November 11, 2007). Here, I take a closer look at the D & T Properties case, which is currently on appeal in the Fourth District Court of Appeal, and which will address the issue of whether unexpected increases in assessments due to rising insurance and utilities costs can be grounds to cancel a contract. The case is contrasted with a trial court decision out of Hillsborough County, Stafford v. WCI, which held (contrary to the trial court in D & T) that such increases do in fact constitute a material and adverse change.
4. Pugliese v. Pukka Development, Inc.: The ILSA Quagmire Gets Thicker For Developers As A New Opening For Condo Contract Revocation Emerges (November 27, 2007). This piece looks at a recent federal court decision on a developer exemption under ILSA which disagreed with a prior Florida state appellate court opinion, illustrating just how contentious interpretations of the ILSA statute can be.
Other popular posts have taken a broader view of the litigious real estate climate in Florida and tried to draw some conclusions about the moral discourse fueling the battles being waged in the court system:
5. Some Thoughts On The Yin And Yang Of Florida Condo Contract Litigation (November 6, 2007). This piece contrasts two oft-heard strains of moral-fingerpointing from the mouths of condo contract litigators: the buyer as irresponsible “profiteer” versus the developer as even greedier and more irresponsible profiteer.
6. “Buyer’s Remorse” Versus “Developer’s Remorse” And The Continuing Saga Of The Florida Condo Market Tailspin (December 27, 2007). And finally, the sixth-most-popular article considers the notion of “buyer’s remorse,” as it has been developed in the recent popular media, and considers whether there may be a competing conception of “developer’s remorse” which could explain the current state of affairs in the Florida condo market and the litigation surrounding it.
As 2008 unfolds, expect more of the same from this blog, with perhaps a sharpened focus on the law as it is presently evolving. Inevitably, the current glut of condo contract lawsuits will produce a collection of new opinions from Florida courts that will fill in some of the blanks of uncertainty in the law, probably raise some new uncertainties, and in general, define the manner in which blame for the condo bubble burst will be judicially apportioned among buyers, investors, homewoners, and developers. This blog will continue to strive to provide useful and even-handed analysis and clarification of the law and its evolution.
This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.
Mr. Beck has a law degree from Harvard Law School, and practices law in the courts of South Florida. His law firm, Beck & Lee Business Trial Lawyers in Miami, is dedicated to the practice of business litigation. A significant portion of Mr. Beck’s practice is devoted to issues arising under condominium purchase agreements. He can be reached at 305-789-0072 or firstname.lastname@example.org