california school of law

california school of law
A question I get frequently from people who purchase residential property in Florida, such as a condominium, is whether they run the risk, with a plea from the developer in case they do not (or even "t) show up for closing. Generally, the answer to this question is not necessarily a simple" yes "or" No ", but there are some important principles of Florida law to be considered as a way of anticipating what will happen if a buyer is not in the vicinity:

1. Many purchase agreements provide that the seller is entitled to a certain amount of liquidated damages as the sole and exclusive remedy should the buyer default, ie not too close. The available liquidated damages are usually expressed as a percentage or the entire amount of deposits which the buyer paid. If the contract is an exclusive liquidated damages clause, the developer is excluded from the performance of the contract or any other solution for that matter. See Hatcher v. Panama City Nursing Center, Inc., 461 So. 2d 288 (Fla. 1st DCA 1985).

2. It is important to bear in mind that specific performance - which means that a party forced to go to court to discuss the terms of a contract - is itself an exceptional solution. How a court to "specific performance of the contract for the sale of land will only be decreed if the contract is capable of being mutually enforced with the results, and the only practical, the moving party is not guilty, and there is Laches equity countervailing duties against him, and there is no right to an adequate solution for him. "Hembree v. Bradley, 528 So. 2d 116, 117-18 (Fla. 1st DCA 1988) (emphasis added). Accordingly, if the seller actually has a proper solution right under the contract, then specific performance is not available. For example, if the contract allows the seller to collect liquidated damages in the event of a breach of the buyer, so there is a sound basis for finding that certain benefits not available, because the liquidated damages provision constitutes a "reasonable remedy right" to the seller - even if the liquidated damages clause is not "exclusively", as described in paragraph 1

3. Buyers have an additional line of defense for certain services, particularly given the current and continuing state of the housing, where mortgage financing could be very difficult or even impossible to obtain. (See, for example, the "blacklists" used by some banks for Miami condominium projects for which the banks are not willing to extend financing.) Castigliano v. O'Connor, 911 So. 2d 145 (Fla. 3D DCA 2005) dealt with a somewhat confusing set of facts, a condo purchase agreement, and the buyer, searching for specific performance of the seller, which means that the seller by using the closure. The court noted that "[a] s specific performance is an equitable solution, the buyer should be prepared to show that it is not unjust or oppressive to the seller, the contract enforced," and found that the standard does not met because "the purchasers have failed to show that an adoption of a performance does not require the seller to extraordinary efforts or expenditures to close the contract for the sale." By analogy, the same reasoning seems that a developer obtain specific performance against a buyer who is no longer in a position to make a mortgage to buy a property and would thus be forced to raise money through alternative means of closure. And this reasoning would apply even in cases where the contract left open, or explicitly provided for, the remedy of specific performance.

Under the foregoing principles of Florida law, an attempt by a developer to sue a purchaser in an effort to remedial measures outside the mandate of the liquidated damages provision will normally be on shaky ground, especially if the developer is, the specific performance. This does not mean that developers are not entitled to the threat posed by the specific power as a tactic to force the buyer to close. But whether such a threat is credible and, ultimately, on the day in court depends on the facts and law.

Mr. Beck has a law degree from Harvard Law School, and practices law in the courts of South Florida. A substantial portion of his practice is devoted to issues arising under condominium purchase agreements, and maintains a blog at http://beckandlee.wordpress.com for Florida legal matters, including matters relating to Florida Condo sales. He can be reached at 305-789-0072 or jared@beckandlee.com