Posts tagged lost profits.

The Whitlow opinion provides a thoughtful and scholarly discussion regarding the importance of jury trials, the purpose of summary judgment proceedings, and the practical impacts of the new summary judgment rule.Read More

On July 26, 2023, the Securities and Exchange Commission adopted new rules requiring public companies to disclose material cybersecurity incidents they experience and to disclose on an annual basis material information regarding their cybersecurity risk management, strategy, and governance. Read More

Because emojis can be used as a form of communication, the question arises as to whether emojis can create a binding legal contract.Read More

On May 2, 2023, Florida Governor Ron DeSantis signed into law HB 3, also known as “An Act Relating to Government and Corporate Activism (the “Act”). Read More

To address the shortage of affordable housing, the Florida legislature passed the “Live Local Act” (the “Act”), the State’s most impactful housing legislation in decades.Read More

The Live Local Act (SB 102) (the “Act”), amends multiple provisions of the Florida Statutes with the overarching purpose of spurring additional development of affordable housing in the State. Importantly, for qualifying affordable housing projects, the Act preempts local zoning codes and comprehensive plans with...Read More

In a recent case, Florida’s Second District Court of Appeal offered a reminder that the fundamental—and limited—purpose of a preliminary injunction is to maintain the status quo.Read More

A recent court case (Exclusive Motoring Worldwide, Inc. v. Soral Investments, Inc., 2022 WL 5237093 (Fla. 3d DCA 2022)) serves as a good reminder that a landlord may only be able to obtain funds deposited into the court’s registry “[i]f the landlord is in actual danger of loss of the premises or other hardship resulting from...Read More

A recent case weighed the extent to which a purchaser was able to negotiate terms when exercising a purchase of property under an option in a lease.Read More

In certain landlord-tenant disputes, courts may be open to requiring the landlord to produce leases with other tenants, but also may be open to redactions to those leases.Read More

On September 29, 2022, the Internal Revenue Service (the “IRS”) announced certain tax relief for victims of Hurricane Ian in Florida, specifically affected taxpayers will now have until February 15, 2023, to file various federal individual and business tax returns and make tax payments.Read More

On June 27, 2022, Governor Ron DeSantis signed “Miya’s Law” (SB 898) into law which is designed to increase safety for residential tenants and significantly impacts the duties of Florida landlords and property managers.Read More

A hearing on payment into the registry may result in a preliminary ruling as to some of the ultimate issues in an eviction, but it is not the same as a final hearing.Read More

In a recent case, the Florida Supreme Court held that an arbitration covenant contained in a developer’s original deed also bound the second owner. The case serves as a good reminder that, although a subsequent owner of residential property might not think to even review the original deed, such a review is necessary because...Read More

More than one business owner this week has wondered aloud: “Why is my lawyer spending so much time (and, therefore, money) on the minutiae of the Operating Agreement? Does any of that matter, anyway?”  In response to that question, Florida’s Third District Court of Appeal (Third DCA) reminds us that the rights granted by an...Read More

In a recent case, Florida’s Second District Court of Appeal (“Second DCA”) held that a commission-splitting agreement—even a very lopsided one—should not be analyzed under Florida’s restrictive covenant statute because such an agreement is not a “restraint of trade” under Florida law.Read More

Whether as a result of market conditions, evolving golfer preferences, or the financial realities of operating a golf course, golf courses in Florida regularly change hands. This blog post highlights some key issues to account for when preparing to purchase or sell a golf course in Florida.Read More

Earlier this month in Levy v. Levy, No. SC20-1195, 2021 WL 4614308 (Fla. Oct. 7, 2021), the Supreme Court of Florida issued a ruling that section 57.105(7) of the Florida Statutes did not apply to the attorney’s fee provision in a divorced couple’s property settlement agreement (“PSA”).  Section 57.105(7) of the...Read More

The amendment of Fla. Stat. 409.2576, which became effective Oct. 1, 2021, is a significant change for Florida businesses and imposes new requirements for employers who were not previously affected.Read More

To defray expenses for those hit the hardest by COVID-19, the Federal Emergency Management Agency (FEMA) is reimbursing funeral expenses for deaths attributable to COVID-19. Read the blog below for more information on the application process. Read More

Governmental action burdening private property does not always amount to a taking of private property. In such instances, private property owners may be able to recover damages against state and local entities in Florida under the Harris Act, although they still face a high hurdle.Read More

In Florida, when two or more co-owners of real property disagree over its use or management, one mechanism to resolve such disagreement is by partition.Read More

Among the key elements that make up a typical Business Continuity Plan (“BCP”) are guides and procedures addressing emergency action to manage business functions and maintain operations.Read More

House Bill 625 (2021) amends Sections 733.6167 and 736.1007 of the Florida Statutes to require attorneys to make written disclosures for attorney fees in trust and estate administrations.Read More

The success of the modern internet can, in many ways, be traced to the passing of the watershed law of internet regulation that provides immunity from civil lawsuits for platforms or other internet intermediaries that publish the content of others. This law, Section 230 of the Communications Decency Act (or “Section 230”...Read More

This is the second of a multi-part series of blog posts which will introduce the concept of Business Continuity Planning and explain the elements that go into making a typical Business Continuity Plan.Read More

Common estate planning misconceptions, as well as a lack of focus on legacy planning, have resulted in a number of common myths which have led people to believe that an estate plan is unnecessary. With 2021 well-underway, it is important for individuals, families, entrepreneurs, and estate holders to reevaluate the untruths...Read More

Most organizations are woefully unprepared for an inevitable interruption to normal business activities. Often, the difference between a company of great value that survives for generations and those that are merely a passing concern is the ability to plan for, adapt to, and survive the unexpected.Read More

Florida’s ports are critical to the state’s economy and development - serving as the focal point for the movement of goods and people into and out of the U.S., generating well-paying jobs, supporting business and recreation, and contributing to state and local tax coffers. Notwithstanding the importance of Florida’s...Read More

Agricultural classification of land under the Greenbelt Law affords property owners substantially lower real property taxes compared to taxes on property classified for other purposes. Given the potential for abuse of the Greenbelt Law by speculative developers, property owners must adhere to specific requirements in...Read More

By refusing to accept an environmental activist’s appeal, the US Supreme Court let stand a developer’s damages judgment against the activist for her challenge to the developer’s project.Read More

A Florida court again reiterated that there is no “fairness” exception to the requirement of paying rent on time into the court registry during a commercial eviction.Read More

Although changes to the National Flood Insurance Program (NFIP) have been under consideration for some time in order to bridge the gap between premiums and expenditures, new rates for all NFIP-insured properties will go into effect on October 1, 2021 pursuant to a major overhaul of the NFIP referred to as “Risk Rating 2.0.”Read More

The government's suspension of residential evictions due to nonpayment of rent has crippled multifamily landlords who continue to incur taxes, insurance, maintenance fees and other expenses related to their properties. However, landlord stakeholders can consider the following options in an effort to minimize the...Read More

A Florida court reiterated that there is no “fairness” exception to the statute’s requirement of paying rent on time into the court registry during a commercial eviction.Read More

A review of the post-COVID effects plaguing the real estate market, and the expected trends we can prepare to watch unfold in the interim adjustment period.Read More

As the 2020 presidential and congressional elections approach, individuals should consider taking proactive steps in their wealth management by strategically aligning their financial goals with the incentives currently available.Read More

When considering real estate in your estate plan, it is important to determine the best form of ownership for each type of property, which may vary depending on the type of real estate you own.Read More

Estate planning is a team effort and the lineup of individuals and professionals that you choose for your team roster will determine the integrity of your plan for years to come.Read More

In order to retain the integrity of the plan and to ensure the titling of your assets is aligned with the plan you created with your attorney, you should consider reviewing your estate plan with a "yearly exam."Read More

If you are considering buying a commercial note that is in default because you ultimately want to foreclose to buy the property securing the loan, there are several things to consider as part of your due diligence.Read More

As real estate users consider how Covid will change their space needs, they should also consider what provisions will serve them in future lease-related litigation. Here are 10 questions your litigator may ask about your lease.Read More

Consider the following - A Chapter 11 bankruptcy case is filed. The landlord now has a tenant that is in bankruptcy. This is a disaster for the commercial landlord, right? Not necessarily.Read More

As commercial real estate deal flow has significantly decreased due to the novel coronavirus/COVID-19, there is no better time than the present for sellers of commercial real estate to plan in advance for the successful sale of their property.Read More

Global companies should take reasonable, risk-based steps to ensure that their processes and protocols are appropriately configured to screen relevant sanctions and customer information and to ensure compliance with U.S. sanctions.Read More

At the outset of the pandemic, the Securities and Exchange Commission (“SEC”) acknowledged these challenges and on March 25, 2020 the Division of Corporation Finance (“CorpFin”) issued CD Disclosure Guidance Topic No. 9, giving guidance on its views regarding disclosure and other securities law obligations that...Read More

When a Chapter 11 bankruptcy case is filed, a commercial landlord with a defaulting or even a non-defaulting tenant may ask – now what? In this post we will address the automatic stay and its injunction against certain actions by a landlord.Read More

Chances are, parties to Florida real estate contracts didn’t give much thought to a force majeure clause when they drafted their agreement, other than to make sure there was one and, possibly, to make sure it covered hurricanes.Read More

Florida courts have not provided a brightline rule for “ordinary wear and tear” means in a commercial lease, but they have provided some guidance.Read More

A Florida court considered whether commercial tenant paid its full share of operating expenses.Read More

A Florida court considered whether commercial tenant paid its full share of operating expenses.Read More

If a tenant wants to renew its lease and fails to send the landlord written notice on time of its intent to renew, is the tenant out of luck?  Not necessarily.Read More

A Florida court considered whether a lease guaranty covered extensions of the lease term not provided for in the original lease.Read More

In a recent case, an appellate court recently threw a wrench into how the collecting of rents works during some foreclosures.Read More

Typically, a tenant is required to pay rent into the court's registry if it seeks to remain in possession of the property during the lawsuit. We'll discuss what can happen if the tenant disputes the amount of rent that needs to be paid.Read More

A new case about an exculpatory clause in a lease is an example of the importance of good drafting.Read More

Options to renew a lease can be worded in a variety of ways, but what happens when a lease doesn't say the amount at the end of the existing term?Read More

Under even the most landlord-favorable standard, can a commercial landlord ever have an absolute right to reject a proposed assignment?Read More

Under even the most landlord-favorable standard, can a commercial landlord ever have an absolute right to reject a proposed assignment?Read More

We have previously discussed what a business should do when it’s hit with a lawsuit over alleged violations of the Americans with Disabilities Act (“ADA”), but can a retail tenant be sued only for ADA violations at its physical store?Read More

An update on our May post about a new Florida law meant to help property owners fight ADA lawsuits.Read More

The good news is that, with reasonable care and a bit of common sense, cyber fraud can be prevented. But if the theft occurs because you failed to take precautions to protect your email account, it may be time to call your insurer, or your lawyer. Or both.Read More

Acceleration clauses do not usually cause too much controversy in litigation, but there is room for missteps by the landlord.Read More

If a landlord learns that trademark infringement is occurring on its premises by one of its tenants and fails to stop further violations, the landlord may be held responsible by the trademark holder for damages relating to the infringement of a trademark.Read More

Help may be on the way for property owners sued for alleged violations of Title III of the Americans with Disabilities Act.Read More

After the owner of a Florida shopping center found itself getting billed for property taxes on land it does not own, an appellate court had to figure out whether a lease is just a lease.Read More

A foreclosure judgment, followed by sale of the mortgaged property, doesn’t necessarily end a foreclosure case. If the sale proceeds are insufficient to fully pay the debt, the next step is a money judgment against the borrower for the difference (a “deficiency judgment”).Read More

What do you do when you’re sued for having a property alleged to be out of compliance with the Americans with Disabilities Act?Read More

The Fourth DCA recently ruled that liens recorded after a lis pendens, but prior to a foreclosure sale, are discharged.Read More

What must a lender do in order to obtain a judgment in Florida when the sale proceeds are not enough to pay off the debt of the property? Al LaSorte explains what a deficiency judgment is and how to navigate the legal landscape in obtaining one.Read More

A Florida landlord recently learned that “self-help” is not allowed for evicting a tenant, even if the parties’ lease says it is.Read More

Many types of contracts require the parties to submit their disputes to arbitration. For example, arbitration clauses are common in consumer agreements, such as car leases and gym memberships. While a consumer can negotiate certain terms, like price, most of the provisions are not negotiable. While the consumer may be stuck...Read More

Before pursuing a tenant for damages, a landlord must decide whether there is value in pursuing a defaulting tenant for money damages. So how does a landlord decide? Read 10 things a landlord should consider in this post.Read More

It’s bad enough having to call your real estate litigator. But it’s worse when he or she tells you that your lease is missing some critical provision that would help you in your current dispute. Here are ten things your litigator wants to see in your commercial lease.Read More

No point in finding a willing buyer for your client’s property unless you get paid for your efforts, right? A lien can be a powerful tool to make sure this happens, but not without risk.Read More

Before a landlord files suit for eviction, it should first consider whether there is any equipment on the premises that could help attract a new tenant. A landlord may prevent a tenant from taking equipment from the premises by filing a distress writ.Read More

When the tenant’s business is made illegal during the term of the lease, the tenant’s business is likely to disappear altogether, leading to a likely default. What that means for the landlord and tenant may come down to drafting.Read More

We’ve helped commercial real estate and leasing brokers deal with many mistakes over the years. Here are ten to avoid.Read More

Taxpayers must remember that filing a lawsuit to challenge your county property appraiser’s valuation of your property, or denial of an exemption from ad valorem taxes, does not get you out of paying while the suit is pending. What happens, though, when the lawsuit covers one tax year but goes on for more than one?Read More

Once you have filed your complaint seeking damages for breach of a lease or guaranty, you are required to serve the party from which you are seeking relief. But what happens when you are having difficulty serving the breaching party because they are either intentionally avoiding service or they have moved out of state?Read More

Because she won the case by claiming she wasn’t a party to the mortgage, she had no right to rely on that mortgage’s fee provision.Read More

Does a marina serve a public purpose? Does it matter if the marina is owned by a city or a private business owner?Read More

Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”) prohibits unfair, deceptive, and unconscionable actors or practices in the conduct of any trade or commerce—including the purchase and sale of real estate.Read More

Even well-drafted partnership and operating agreements often relegate one key topic to boilerplate language: how to remove a manager of the business when the partners disagree on how it is being run.Read More

Florida’s foreclosure statute expressly provides that both foreclosure and deficiency proceedings are the province of the court, not a jury. (Section 702.06, Fla. Stat.)Read More

It’s a common commercial landlord-tenant showdown – a tenant accuses its landlord of failing to make repairs and threatens to withhold rent. But can a tenant legally do that?Read More

A court must enforce a settlement agreement and enter a final judgment of foreclosure when both Parties agree to the terms of an agreement even where the foreclosing party is unable to produce the original promissory note because Florida law highly favors settlement.Read More

What if the owner sells the property and invests the sale proceeds in securities while looking to buy a replacement homestead? Can a judgment creditor grab the proceeds, or are they still protected?Read More

In the 2015 case of Griffin Industries, LLC v. Dixie Southland Corp., the Fourth District Court of Appeal addressed two issues that frequently arise in landlord-tenant litigation: (i) on what basis a tenant may claim constructive eviction; and (ii) a landlord’s damages after a tenant vacates the premises.Read More

Reforeclosure can be an effective tool for eliminating omitted subordinate liens. But it has a catch!Read More

Typically, eviction of a commercial tenant does not terminate a lease under Florida law, or preclude the landlord from exercising its option to accelerate rent payments under the terms of the lease in the absence of any relevant modifying provisions in the lease agreement or evidence of landlord’s retaking possession for...Read More

Even when a party prevails on its claims in an action seeking judicial partition of property, it may not be immediately entitled to a distribution when there is a pending counterclaim that has yet to be adjudicated.Read More

In Genesis Ministries, Inc. v. Brown, Case No. 1D15-1310 (Fla. 1st DCA February 16, 2016), the First District Court of Appeal held that a challenge to a property tax lien does not need to be filed within 60 days of the certification of the tax roll.Read More

A restaurant owner successfully asserted impossibility in defense of a suit seeking to compel it to rebuild a gate in Marathon Sunsets, Inc. v. Coldiron, 41 FLW D685a (Fla. 3rd DCA 2016).Read More

In Caraccia v. U.S. Bank, N.A., the address used by the lender to send the default notice was ruled to be valid even though it was not the current property address because the PO Box address used was considered a valid address since it was provided by the owner to the U.S. Postal Service.Read More

A married couple’s reliance on the protection against forced sale of homestead property in Florida Constitution, Article X, Section 4(a) to defend a specific performance action was rejected in Mirzataheri v. FM East Developers, LLC, 41 FLW D683a (Fla. 3rd DCA 2016).Read More

Sometimes, even where the lender has the original note and introduces it into evidence at a trial in a foreclosure, the borrower challenges standing.Read More

Welcome to the Florida Commercial Real Estate Litigation Blog. Our blog name does not leave much to the imagination as to what we will cover here – all things related to commercial real estate litigation in Florida. There will be case updates and posts about topics of interest to litigators and transactional attorneys, as...Read More

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Shutts & Bowen, established in 1910, is a full-service business law firm with approximately 270 lawyers located in eight offices across Florida.

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