litigation

The attorneys at WeidnerLaw have a vast range of experience in contract and business disputes, including a particular focus on Florida real estate transactions. One of the more common disputes that occurs in real estate are disputes over real estate purchases.  Frequently a purchaser claims that a seller did not adequately disclose known conditions that impact the value of the property and often the purchaser brings suit against the seller, the realtor and all parties involved. The case, known as Billington v. Ginn-La Pine Island that was just released from the Fifth District Court of Appeals in south Florida just eliminated a vast majority of these types of claims.  The lesson from this case is very clear and very simple:

MAKE SURE YOU HIRE AN EXPERIENCED REAL ESTATE ATTORNEY TO REPRESENT YOU IF YOU PURCHASE REAL ESTATE!

I want to make one other point that is very simple and very, very clear…but it’s a point that the vast majority of people do not understand…..

YOU CANNOT SUCCESSFULLY SUE YOUR REALTOR IF SOMETHING GOES WRONG WITH YOUR PURCHASE TRANSACTION!

Understanding this point is very important because the Realtor, whether they be buyer’s agent, seller’s agent or transaction broker is most involved in the transaction. They guide buyers and sellers, and engage in the most pre-purchase communication. But here’s the thing….nothing about what that Realtor is saying can be relied upon. In one case that I litigated for years, the Realtor walked my client through the entire property…confidently showing the four buildings that were clearly identified on the MLS listing.  Only after my client closed on the property did he learn that he did not in fact purchase 4 units, but only purchased 2 units.  But there was no way to sue the Realtor for damages. The lesson is simple….

MAKE SURE YOU HIRE AN EXPERIENCED REAL ESTATE ATTORNEY!

 

And now, we get to the case at issue in this post:

Accordingly, we hold that the “non-reliance” clauses in this case negate a claim for fraud in the inducement because Appellant cannot recant his contractual promises that he did not rely upon extrinsic representations.

We also conclude, pursuant to Oceanic Villas, that an express waiver of the right to base a claim on pre-contract representations renders the contract “incontestable . . . on account of fraud.” Oceanic Villas, 4 So. 2d at 690. We emphasize that the disclaimer clauses here are as clear and conspicuous as they are comprehensive. If these clauses are insufficient to render a claim for fraud “incontestable” within the contemplation of the Oceanic Villas court, then no disclaimer can possibly accomplish that objective—an objective that is both reasonable and essential in our complex and litigious society. Written contracts are intended to head-off disputes. Public policy strongly favors the enforcement of contracts. Although our decision might benefit those who would use a disclaimer clause to cleverly avoid the consequences of a deliberate fraud, contracting parties can protect themselves against such fraudulent practices by respecting the gravity inherent in the contracting process and carefully reviewing a contract to ensure that material representations are expressed in the instrument. The law necessarily presumes that parties to a contract have read and understood its contents.

5D14-2177.op

One Comment

  • James Musters says:

    I wonder how the 5th DCA will rule when I quote the same case back to them as a defense to REFORMATION?

    The necessary elements to the cause of action for ‘Reformation’ are mutual misunderstanding between the parties,
    or or misunderstanding by one and fraud by the other.

    When a BANK wants to reform a note, mortgage, or legal description, or to change the capacity of parties signatures ?

    When we say to the 5th DCA, eat your own words:
    ” Written contracts are intended to head-off disputes. Public policy strongly favors the enforcement of contracts. Although our decision might benefit those who would use a disclaimer clause to cleverly avoid the consequences of a deliberate fraud, contracting parties can protect themselves against such fraudulent practices by respecting the gravity inherent in the contracting process and carefully reviewing a contract to ensure that material representations are expressed in the instrument. The law necessarily presumes that parties to a contract have read and understood its contents.”

    To me this suggests they have just wiped out the cause of action for REFORMATION.
    That is going to give the banks hartburn.

    To get to reformation you have a mutual mistake (basically both sides agree a mistake was made) then it would have to be mistake by one and fraud by the other. So it looks like any ‘Reformation’ of notes, mortgages or ‘legal descriptions’ is now a thing of the past, because the written contract rules.

    If the written contract always prevails over claims of misunderstanding or claims of fraud, there is no basis for “Reformation”.

    The ‘standard of evidence’ for Reformation is already higher than ‘preponderance of the evidence’: The standard of evidence for reformation is “clear and convincing evidence” which is close to ‘beyond reasonable doubt’.
    (Although I don’t think the distinction has been defined in Florida Jury Instructions, simply because most times reformation is in equity and not before a Jury. My case may change that.)

    Now, as well as the higher standard of evidence bar to clear, it appears ‘reformation’ in the counties covered by the 5th DCA is just about wiped out……That’s not going to stand the test of time.

    In the mean time lawyers are going to be re-reviewing notes, mortgages and closing documents looking for “innocuous” disclaimer clauses as a defense to any bank request that even smells of reformation.

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