The Real Deal: JMH Development must turn over remaining interest in 300 Collins: judge

The Real Deal features Kluger Kaplan’s recent win on behalf of PSB Collins LLC.  

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A judge has ordered Jason Halpern’s JMH Development to turn over its remaining interest in Three Hundred Collins to its silent partner, amid ongoing litigation.

The five-story, 19-unit boutique condo at 300 Collins Avenue in Miami Beach’s South of Fifth neighborhood was completed this summer, and has just one unsold unit remaining: Penthouse 2 priced at $5.3 million. JMH must turn over that unit and any cash in the bank to its partner PSB Collins LLC, led by Dhruv Piplani, according to an order signed by Miami-Dade Circuit Judge William Thomas.

Piplani’s attorney Marko Cerenko said Piplani’s entity is also entitled to the cash proceeds of the $1.6 million sale of unit 3-A, which was purchased just before the lawsuit went to trial last week. The value of the total owed to Piplani’s entity is estimated at $6 million to $7 million, said Cerenko, a partner at Miami-based Kluger, Kaplan, Silverman, Katzen & Levine…

Continue reading in The Real Deal. 

Anatomy of a Case: Kluger Kaplan Sets New Standard for Upholding Residential Real Estate Contract

Case: Diaz v. Kosch, Third District Court of Appeal of The State of Florida

Thanks to the arguments of Kluger Kaplan attorneys, Alan Kluger and Ashley Frankel, along with Scott Kravetz of Duane Morris, the Third District Court of Appeal of The State of Florida recently set a new standard for strictly upholding the provisions of the Florida Bar’s standard contract for real estate home purchases.

AJK High ResolutionBackground:

The case began in 2012 with a real estate transaction gone bad.  Coral Gables homeowners, David and Tiffany Kosch, entered an agreement with Miami attorney, Richard Diaz, to sell their home “as-is” for nearly $2.8 million.  The purchase agreement followed the standard form for a real estate contract established by the Florida Bar.

As part of the purchase agreement the sellers completed a disclosure statement affirming, among other things, that they had no knowledge of improvements constructed in violation of applicable building codes, without necessary permits, or with any open permits not closed with a final inspection to the property or the presence of toxic substances. The prospective buyer deposited $50,000 in escrow for the purchase with a further deposit of $235,000 due when the 10-day right of inspection and right to cancel period expired.

AFrankel232During the 10-day inspection/termination period, the buyer raised concerns regarding unpermitted renovations; however, they did not negotiate an extension of the inspection period or terminate the transaction. On the final day of the right to terminate period, the buyers deposited the additional $235,000 in escrow, per the agreement, but also threatened legal action against the sellers.

Shortly before the closing date on the purchase, the buyers terminated the transaction demanding return of the money deposited in escrow. The buyers also filed a lawsuit against the sellers and brokers asserting claims for breach of contract, conversion, fraud in inducement, fraud in concealment, negligent misrepresentation, and conspiratorial fraud, with a claim for punitive damages asserted as well. The buyers also alleged the property contained radon contamination requiring extensive remediation.

The Ruling:

The litigation over the failed sale was extensive, lasting more than four-and-a-half years during which the buyer filed multiple motions for punitive damages. Ultimately, Judge Eric Hendon of the Circuit Court for Miami-Dade County issued a summary judgement in favor of the sellers, ruling the buyers did not properly exercise their right to terminate in the period allowed by the contract, and so were not entitled to a return of the money held in escrow. Additionally, the judge awarded the sellers attorneys fees in the case. In June 2018, the Third District Court of Appeal affirmed Judge Hendon’s decision.

The court ruled that the allegations in the plaintiffs’ complaint were contradicted by the language in the “As Is” Residential Contract for Sale and Purchase, which included non-reliance provisions. The court further ruled that the buyers could not attempt to get around these provisions by effectively creating a “conditional tender” of the second deposit, which would make the sellers liable for repairs, permitting issues and other circumstances.

Impact:

This was a landmark decision that reinforces the strict, but enforceable provisions in contracts governing residential real estate transactions. It affirms that purchasers and sellers must carefully review and comply with the letter of each provision in the Florida Bar’s standard form.

Parties in a home purchase must adhere to the wording of the “As Is” contract, which states that once a deposit is in escrow, the purchaser cannot change the terms of the agreement, and must either move forward or walk away. Purchasers are not allowed to create a “conditional tender” with a second deposit to reserve their right to purchase but hold the sellers liable for repairs.

Law 360: Ruling Puts Banks On Hook For Fla. Real Estate Back Taxes

Law360

Law360, Miami (October 27, 2017, 8:25 PM EDT) — When a mortgage company loaned money to a Miami buyer in 2007, the lender didn’t know the homeowner would improperly claim a homestead property tax exemption. It wasn’t until seven years later that the county would file a lien for the unpaid taxes, a lien that a Florida appeals court now says applies retroactively and takes priority over the mortgage.

The decision, issued Oct. 18, could cause headaches for lenders and title insurers who will now need to worry about priority liens popping up after closing and applying retroactively.

The biggest issue with the decision is its retroactive nature, which could, depending on the property and how long the homeowner wrongly claimed the exemption, lead to liabilities of hundreds of thousands of dollars, according to Farach. By law, a tax assessor can claim up to 10 years’ worth of back taxes for improper homestead exemptions.

“Florida has always been a first in time, first in right state, with one exception: that government liens are superior,” said Marko Cerenko, a partner at Kluger Kaplan Silverman Katzen & Levine PL. “But this means you can go back in time and prioritize a subsequent lien.”

Read the full story on Law360

Evolving Society, Evolving Law?

 

Introducing our KK Q&A series. Over the coming months, look out for monthly Q&A posts with Kluger Kaplan associates, digging in about some of the most interesting parts of their practices. Something special you’re dying to ask an associate or learn more about? Send us a message and we’d be happy to include it.

The world is certainly different than it was 50 years ago. No longer is it the norm to get married, buy a house, have a family – in that order. In many places, gone are the days of nuclear family, picket fence suburbia, and instead, trading in for later in life marriages, children out of wedlock, and pre-marital cohabitation. In fact, Miami is among the highest numbers of non-married co-borrowers of new mortgages this year.

But has the law changed to accommodate the new norm? Not really. We asked Lindsay Haber, KKSKL associate and family and divorce law expert, about the effect societal changes have on the practice of law.

  1. What should unmarried couples be aware of when combining their lives?
    As couples are slower to rush down the aisle, couples should be considering legalities of purchasing cars and property together, mixing incomes, accumulating debts and much more. When any sort of comingling of finances occurs, there is no real recourse in a family court should an unmarried couple break up. A popular concern for unmarried co-habitating couples is buying a home together. The question of how to own property is something I frequently see unmarried couples struggle with. If a couple is married with no prenup, real property purchased during the marriage is generally considered marital property regardless of how titled. For an unmarried couple, however, there is no such presumption of jointly held ownership when an unmarried couple titles the property in one party’s name only.  There is limited recourse for the party not titled, yet who has helped purchase the real property, pay down the mortgage, and put money towards the upkeep of the property.
  1. From your perspective, has the law had any effect on families?
    The world is changing. People are not as quick to get married, which leads to more marriages later in life. More later-life marriages mean more life events happening prior to marriage, like opening your own business, inheriting money, and creating substantial debt (be it school or otherwise), and a more complicated union is born. This, in turn, is just one of the reasons couples should consider entering into a pre-nuptial agreement prior to marriage.
  1. How has the changing view of gender roles in a marriage effected family law?
    When most people think of a family going through a divorce or paternity matter, one of their first thoughts is “how much is the man going to have to pay?” But that’s no longer the case.  I have had quite a few cases this year where the wife or mother has been the breadwinner, has had to pay alimony to her now ex-husband, or will be paying her ex-husband or ex-boyfriend child support until their child reaches the age of a majority.  I have also had several cases where both parties make nearly the same income and are surprised to learn during their divorce or paternity action that neither party is entitled to alimony or child support from the other.
  1. In an ever-changing world, can you suggest some tips for someone in the first stages of a divorce or a paternity matter?
    Many get the wrong advice from friends and family—who all probably have the best intentions for that person—but ultimately, this can do more harm than good. There is no such thing as a one-size-fits-all divorce advice. No two families are the same, so no two divorces and no two paternity actions will be the same. While a friend or family member may recommend that you should move out, empty a bank account, or immediately file for divorce, the best first step is to contact an attorney for a consultation to see if that is in fact the right step for you to take. Attorney/prospective client privilege applies in consultations so you can feel comfortable that what is said during that time will remain private.

 

Lindsay HaberLindsay Haber is an associate in the firm’s Family Law Group, focusing her practice on family law disputes, including divorces, child custody issues, domestic violence and preparations of prenuptial agreements and paternity disputes.  Beyond her national practice, Ms. Haber has handled international domestic relations issues, including international kidnapping.

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