Real Property, Financial Services & Title Insurance Update: Weeks Ending May 22, 2015

REAL PROPERTY UPDATE

• Duty to Disclose/Vacant Property: plaintiff failed to present competent, substantial evidence of existence of fact materially affecting value of property and did not prove defendants had actual knowledge of condition – Eiman v. Sullivan, et al., No. 2D13-4553 (Fla. 2d DCA May 22, 2015) (reversed and remanded).
• Commercial Lease: tenant entitled to out of pocket expenses where landlord breached lease first by failing to provide code-complaint means of fire egress – Victoriana Building, LLC v. Ft. Lauderdale Surgical Center, LLC, No. 4D12-2979 (Fla. 4th DCA May 20, 2015) (affirmed in part, reversed in part and remanded for amendment to final judgment).
• Foreclosure/Notice: bank’s failure to provide full thirty-day notice not material breach as evidenced by fact that borrowers never attempted to cure default, before, during or after suit filed – Vasilevskiy v. Wachovia Bank, Nation Association, et al., No. 5D13-3468 (Fla. 5^th DCA May 22, 2015) (affirmed).
• Foreclosure/Business Records: testimony of employee of current loan servicer regarding loan payment history met all foundational requirements for admission as business records and was sufficient evidence of record’s trustworthiness – Le v. U.S. Bank, No. 5D14-578 (Fla. 5^th DCA May 22, 2015) (affirmed).
• Restrictive Covenant: it is not necessary to prove irreparable harm to obtain injunction to enforce restrictive covenants on real property; further, party who is aware of restrictions proceeds forward at own peril and cannot later argue it would suffer irreparable harm if restriction enforced – Planned Parenthood of Greater Orlando v. MMB Properties, No. 5D14-2920 (Fla. 5^th DCA May 22, 2015) (affirmed in part, reversed in part and remanded).

TITLE INSURANCE UPDATE

• CPLs: lender’s negligent underwriting does not serve as grounds for a claim to rescind a CPL or affirmative defenses of estoppel, assumption of the risk, ratification, in pari delicto, causation, and breach of duty of good faith – FDIC-R (WaMu) v. Fidelity Nat. Title Ins. Co., Case No. 14-13706, 2015 WL 2237877 (E.D. Mich. May 12, 2015) (order on motion to dismiss and for summary judgment).
• Statute of Limitations: the statute of limitations on owner’s claim for breach of title insurance policy does not start until the title insurer refuses to adequately compensate the owner for a covered loss – Spalding v. Stewart Title Guar. Co., Case No. SC 94580, 2015 WL 2228547 (Mo. May 12, 2015) (affirming amended judgment after jury trial).
• Limitation on Liability: where title insurer pays to defend the insured’s title and cures the alleged defects, the insured has no cause of action against the title insurer – Renaissance Venture Capital Corp. v. Fidelity Nat. Title Ins. Co., 2015 WL 2214128 (N.Y. App. Div. May 13, 2015) (affirming order denying motion for leave to amend and granting motion to dismiss).