Does anyone have case law/practical suggestions for this fact situation?
My client gives notice to leave/files for eviction against his month to month tenant as my client has a buyer for the property. I file for eviction  in county court, but tenant (who is a lawyer) files suit in circuit court claiming he has an oral option to purchase the property by matching the price.
Any case law on this? I’m drawing a blank on my research as it appears to be under Rule 1.060 but there are no cases on this narrow issue
Thanks in advance
Manny

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Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

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Dear Manny,

I may be missing something, but I believe the 2 claims are unrelated and that you can go forward with the eviction, notwithstanding the alleged oral option to purchase.  It seems that the circuit court case has a statute of frauds issue, and unless the lawyer took some action relying on the option to purchase, the case should be dismissed for failure to state a claim since there is no writing to enforce the option.  Arlene

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Tuesday, May 06, 2014 12:05 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Transfer Case from Circuit to County

Does anyone have case law/practical suggestions for this fact situation?

My client gives notice to leave/files for eviction against his month to month tenant as my client has a buyer for the property. I file for eviction  in county court, but tenant (who is a lawyer) files suit in circuit court claiming he has an oral option to purchase the property by matching the price.

Any case law on this? I’m drawing a blank on my research as it appears to be under Rule 1.060 but there are no cases on this narrow issue

Thanks in advance

Manny

http://www.richmangreer.com/images/logo.gif

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.com

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U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

Got one right now.  Tenant claimed that they had an option and the county court kicked it up to circuit for the landlord to file an ejectment case.  I believe the case law says that it is still an eviction case if the tenant has not exercised the option.  Since exercise of the option is a question of fact, I plead Count I for eviction alleging and unexercised option and Count II for ejectment.  See attached cases.

Chuck Hoskin

This e-mail message and all attachments transmitted with it may contain legally privileged and confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying, or other use of this message or its attachments is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (850-433-6581) or by electronic mail (choskin@esclaw.commailto:choskin@esclaw.com) and then delete this message and all copies and backups thereof. Thank you.

Charles P. Hoskin
Direct Dial:  850-444-3881
Fax:  850-434-7163

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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Arlene C. Udick
Sent: Tuesday, May 06, 2014 12:46 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

Dear Manny,

I may be missing something, but I believe the 2 claims are unrelated and that you can go forward with the eviction, notwithstanding the alleged oral option to purchase.  It seems that the circuit court case has a statute of frauds issue, and unless the lawyer took some action relying on the option to purchase, the case should be dismissed for failure to state a claim since there is no writing to enforce the option.  Arlene

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Tuesday, May 06, 2014 12:05 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Transfer Case from Circuit to County

Does anyone have case law/practical suggestions for this fact situation?
My client gives notice to leave/files for eviction against his month to month tenant as my client has a buyer for the property. I file for eviction  in county court, but tenant (who is a lawyer) files suit in circuit court claiming he has an oral option to purchase the property by matching the price.
Any case law on this? I’m drawing a blank on my research as it appears to be under Rule 1.060 but there are no cases on this narrow issue
Thanks in advance
Manny

[cid:image002.gif@01CF692A.805E4B80]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.commailto:MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

[cid:image003.gif@01CF692A.805E4B80]

U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

Arlene,
The case is more complicated than it seems because the exercise of an option (if one does exist in this case) may create an equitable conversion of the oral contract to purchase. Again, this is a little complicated but Florida actually follows the minority rule and holds that an option to purchase is not an interest in real property. If it’s not an interest in real property, then I don’t believe the Statute of Frauds applies (but I’d love for you to show me otherwise)
Thanks

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Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

[http://www.richmangreer.com/emailsig/meritas.gif]

U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Arlene C. Udick
Sent: Tuesday, May 06, 2014 1:46 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

Dear Manny,

I may be missing something, but I believe the 2 claims are unrelated and that you can go forward with the eviction, notwithstanding the alleged oral option to purchase.  It seems that the circuit court case has a statute of frauds issue, and unless the lawyer took some action relying on the option to purchase, the case should be dismissed for failure to state a claim since there is no writing to enforce the option.  Arlene

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Tuesday, May 06, 2014 12:05 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Transfer Case from Circuit to County

Does anyone have case law/practical suggestions for this fact situation?
My client gives notice to leave/files for eviction against his month to month tenant as my client has a buyer for the property. I file for eviction  in county court, but tenant (who is a lawyer) files suit in circuit court claiming he has an oral option to purchase the property by matching the price.
Any case law on this? I’m drawing a blank on my research as it appears to be under Rule 1.060 but there are no cases on this narrow issue
Thanks in advance
Manny

[Image removed by sender.]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.commailto:MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

[Image removed by sender.]

U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

Thanks Chuck; I think that is what we’ve got
Manny

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Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

[http://www.richmangreer.com/emailsig/meritas.gif]

U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Chuck Hoskin
Sent: Tuesday, May 06, 2014 1:56 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Transfer Case from Circuit to County

Got one right now.  Tenant claimed that they had an option and the county court kicked it up to circuit for the landlord to file an ejectment case.  I believe the case law says that it is still an eviction case if the tenant has not exercised the option.  Since exercise of the option is a question of fact, I plead Count I for eviction alleging and unexercised option and Count II for ejectment.  See attached cases.

Chuck Hoskin

This e-mail message and all attachments transmitted with it may contain legally privileged and confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying, or other use of this message or its attachments is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (850-433-6581) or by electronic mail (choskin@esclaw.commailto:choskin@esclaw.com) and then delete this message and all copies and backups thereof. Thank you.

Charles P. Hoskin
Direct Dial:  850-444-3881
Fax:  850-434-7163

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From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Arlene C. Udick
Sent: Tuesday, May 06, 2014 12:46 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

Dear Manny,

I may be missing something, but I believe the 2 claims are unrelated and that you can go forward with the eviction, notwithstanding the alleged oral option to purchase.  It seems that the circuit court case has a statute of frauds issue, and unless the lawyer took some action relying on the option to purchase, the case should be dismissed for failure to state a claim since there is no writing to enforce the option.  Arlene

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Tuesday, May 06, 2014 12:05 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Transfer Case from Circuit to County

Does anyone have case law/practical suggestions for this fact situation?
My client gives notice to leave/files for eviction against his month to month tenant as my client has a buyer for the property. I file for eviction  in county court, but tenant (who is a lawyer) files suit in circuit court claiming he has an oral option to purchase the property by matching the price.
Any case law on this? I’m drawing a blank on my research as it appears to be under Rule 1.060 but there are no cases on this narrow issue
Thanks in advance
Manny

[http://www.richmangreer.com/images/logo.gif]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.commailto:MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

[http://www.richmangreer.com/emailsig/meritas.gif]

U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

Section 68.03 of the Fla. Real Estate Transactions (Boyer) treatise indicates that an option to purchase real estate is subject to the statute of frauds, citing Minton v. Spivey, 505 So.2d 476 (Fla. 5th DCA 1987). Other cases taking that position are McCollum Aviation, Inc. v. CIM Associates, Inc., 446 F. Supp. 511 (S.D. Fla. 1978) and Kamil Gowni & Shenody, Inc. v. BP Corporation North America, Inc., 2003 WL 24051561, 2003 US Dist. LEXIS 26843.

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The information contained in the preceding message is intended solely for the use of the person(s) to whom it is addressed. The preceding message may contain material that is privileged or protected from disclosure under applicable law. If you are not the intended recipient or the individual responsible for delivery to the intended recipient, (1) do not use, disseminate, forward, or copy the preceding message and (2) please notify sender immediately by e-mail or telephone and destroy the preceding message. Thank you.

Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a federal tax law issue, unless expressly stated otherwise, the advice is not intended or written to be used, and it cannot be used, by the recipient or any other taxpayer, for the purpose of avoiding federal tax penalties, and was not written to support the promotion or marketing of any transactions or matters.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Tuesday, May 06, 2014 1:57 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

Arlene,
The case is more complicated than it seems because the exercise of an option (if one does exist in this case) may create an equitable conversion of the oral contract to purchase. Again, this is a little complicated but Florida actually follows the minority rule and holds that an option to purchase is not an interest in real property. If it’s not an interest in real property, then I don’t believe the Statute of Frauds applies (but I’d love for you to show me otherwise)
Thanks

[Image removed by sender.]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

[Image removed by sender.]

U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Arlene C. Udick
Sent: Tuesday, May 06, 2014 1:46 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

Dear Manny,

I may be missing something, but I believe the 2 claims are unrelated and that you can go forward with the eviction, notwithstanding the alleged oral option to purchase.  It seems that the circuit court case has a statute of frauds issue, and unless the lawyer took some action relying on the option to purchase, the case should be dismissed for failure to state a claim since there is no writing to enforce the option.  Arlene

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Tuesday, May 06, 2014 12:05 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Transfer Case from Circuit to County

Does anyone have case law/practical suggestions for this fact situation?
My client gives notice to leave/files for eviction against his month to month tenant as my client has a buyer for the property. I file for eviction  in county court, but tenant (who is a lawyer) files suit in circuit court claiming he has an oral option to purchase the property by matching the price.
Any case law on this? I’m drawing a blank on my research as it appears to be under Rule 1.060 but there are no cases on this narrow issue
Thanks in advance
Manny

[Image removed by sender.]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.commailto:MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

[Image removed by sender.]

U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

Greg,
I’ll have to read those cases as I was relying on Old Port Cove (copy attached) which reads:

[10] Headnote Citing References Where they discuss the rationale, courts adopting the majority view generally conclude that an option or right of first refusal creates an interest in property. Ferrero, 536 A.2d at 1139 (“As rights of first refusal are interests in property, the great majority of American jurisdictions have applied the Rule Against Perpetuities to such rights.”); see, e.g., Stuart Kingston, 596 A.2d at 1384; Gore, 867 P.2d at 338; Martin, 348 N.E.2d at 309; Pace, 347 So.2d at 1317; Melcher, 435 P.2d at 114; McHugh, 380 S.E.2d at 874; Smith, 296 S.E.2d at 854. In Florida, however, an option does not create a legal or equitable interest in property. As we explained over fifty years ago, “until an optionee exercises the right to purchase in accordance with the terms of his option he has no estate, either legal or equitable, in the *1287 lands involved.” Gautier v. Lapof, 91 So.2d 324, 326 (Fla.1956). We have since reiterated that principle. See Leon County Educ. Facilities Auth. v. Hartsfield, 698 So.2d 526, 530 (Fla.1997) (“[T]his Court has long held that the status of parties to the ordinary lease with an option to purchase remains that of landlord and tenant until the option is exercised and that the lessee has no equitable interest in the property.”); BancFlorida v. Hayward, 689 So.2d 1052, 1054 (Fla.1997) ( “Under Florida law, an option to purchase property creates neither an equitable interest nor an equitable remedy.”).

As these cases show, Florida law has consistently held that an option does not create an interest in land. Therefore, a right of first refusal—which may or may not ripen into an option depending on whether the owner decides to sell, see, e.g., Pearson, 497 So.2d at 900—cannot create an interest in land, either.

[http://www.richmangreer.com/images/logo.gif]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

[http://www.richmangreer.com/emailsig/meritas.gif]

U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Gregory Dawson
Sent: Tuesday, May 06, 2014 2:41 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

Section 68.03 of the Fla. Real Estate Transactions (Boyer) treatise indicates that an option to purchase real estate is subject to the statute of frauds, citing Minton v. Spivey, 505 So.2d 476 (Fla. 5th DCA 1987). Other cases taking that position are McCollum Aviation, Inc. v. CIM Associates, Inc., 446 F. Supp. 511 (S.D. Fla. 1978) and Kamil Gowni & Shenody, Inc. v. BP Corporation North America, Inc., 2003 WL 24051561, 2003 US Dist. LEXIS 26843.

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The information contained in the preceding message is intended solely for the use of the person(s) to whom it is addressed. The preceding message may contain material that is privileged or protected from disclosure under applicable law. If you are not the intended recipient or the individual responsible for delivery to the intended recipient, (1) do not use, disseminate, forward, or copy the preceding message and (2) please notify sender immediately by e-mail or telephone and destroy the preceding message. Thank you.

Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a federal tax law issue, unless expressly stated otherwise, the advice is not intended or written to be used, and it cannot be used, by the recipient or any other taxpayer, for the purpose of avoiding federal tax penalties, and was not written to support the promotion or marketing of any transactions or matters.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Tuesday, May 06, 2014 1:57 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

Arlene,
The case is more complicated than it seems because the exercise of an option (if one does exist in this case) may create an equitable conversion of the oral contract to purchase. Again, this is a little complicated but Florida actually follows the minority rule and holds that an option to purchase is not an interest in real property. If it’s not an interest in real property, then I don’t believe the Statute of Frauds applies (but I’d love for you to show me otherwise)
Thanks

[Image removed by sender.]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.commailto:MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

[Image removed by sender.]

U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Arlene C. Udick
Sent: Tuesday, May 06, 2014 1:46 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

Dear Manny,

I may be missing something, but I believe the 2 claims are unrelated and that you can go forward with the eviction, notwithstanding the alleged oral option to purchase.  It seems that the circuit court case has a statute of frauds issue, and unless the lawyer took some action relying on the option to purchase, the case should be dismissed for failure to state a claim since there is no writing to enforce the option.  Arlene

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Tuesday, May 06, 2014 12:05 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Transfer Case from Circuit to County

Does anyone have case law/practical suggestions for this fact situation?
My client gives notice to leave/files for eviction against his month to month tenant as my client has a buyer for the property. I file for eviction  in county court, but tenant (who is a lawyer) files suit in circuit court claiming he has an oral option to purchase the property by matching the price.
Any case law on this? I’m drawing a blank on my research as it appears to be under Rule 1.060 but there are no cases on this narrow issue
Thanks in advance
Manny

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Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.commailto:MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

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Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

File a 57.107(1) motion and see what the lawyer/tenant does. Remember you must send the motion to the tenant and hold for 21 days before filing with the court.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Tuesday, May 06, 2014 2:54 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

Greg,
I’ll have to read those cases as I was relying on Old Port Cove (copy attached) which reads:

[10] Headnote Citing References Where they discuss the rationale, courts adopting the majority view generally conclude that an option or right of first refusal creates an interest in property. Ferrero, 536 A.2d at 1139 (“As rights of first refusal are interests in property, the great majority of American jurisdictions have applied the Rule Against Perpetuities to such rights.”); see, e.g., Stuart Kingston, 596 A.2d at 1384; Gore, 867 P.2d at 338; Martin, 348 N.E.2d at 309; Pace, 347 So.2d at 1317; Melcher, 435 P.2d at 114; McHugh, 380 S.E.2d at 874; Smith, 296 S.E.2d at 854. In Florida, however, an option does not create a legal or equitable interest in property. As we explained over fifty years ago, “until an optionee exercises the right to purchase in accordance with the terms of his option he has no estate, either legal or equitable, in the *1287 lands involved.” Gautier v. Lapof, 91 So.2d 324, 326 (Fla.1956). We have since reiterated that principle. See Leon County Educ. Facilities Auth. v. Hartsfield, 698 So.2d 526, 530 (Fla.1997) (“[T]his Court has long held that the status of parties to the ordinary lease with an option to purchase remains that of landlord and tenant until the option is exercised and that the lessee has no equitable interest in the property.”); BancFlorida v. Hayward, 689 So.2d 1052, 1054 (Fla.1997) ( “Under Florida law, an option to purchase property creates neither an equitable interest nor an equitable remedy.”).

As these cases show, Florida law has consistently held that an option does not create an interest in land. Therefore, a right of first refusal—which may or may not ripen into an option depending on whether the owner decides to sell, see, e.g., Pearson, 497 So.2d at 900—cannot create an interest in land, either.

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Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.commailto:MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

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U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Gregory Dawson
Sent: Tuesday, May 06, 2014 2:41 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

Section 68.03 of the Fla. Real Estate Transactions (Boyer) treatise indicates that an option to purchase real estate is subject to the statute of frauds, citing Minton v. Spivey, 505 So.2d 476 (Fla. 5th DCA 1987). Other cases taking that position are McCollum Aviation, Inc. v. CIM Associates, Inc., 446 F. Supp. 511 (S.D. Fla. 1978) and Kamil Gowni & Shenody, Inc. v. BP Corporation North America, Inc., 2003 WL 24051561, 2003 US Dist. LEXIS 26843.

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The information contained in the preceding message is intended solely for the use of the person(s) to whom it is addressed. The preceding message may contain material that is privileged or protected from disclosure under applicable law. If you are not the intended recipient or the individual responsible for delivery to the intended recipient, (1) do not use, disseminate, forward, or copy the preceding message and (2) please notify sender immediately by e-mail or telephone and destroy the preceding message. Thank you.

Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a federal tax law issue, unless expressly stated otherwise, the advice is not intended or written to be used, and it cannot be used, by the recipient or any other taxpayer, for the purpose of avoiding federal tax penalties, and was not written to support the promotion or marketing of any transactions or matters.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Tuesday, May 06, 2014 1:57 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

Arlene,
The case is more complicated than it seems because the exercise of an option (if one does exist in this case) may create an equitable conversion of the oral contract to purchase. Again, this is a little complicated but Florida actually follows the minority rule and holds that an option to purchase is not an interest in real property. If it’s not an interest in real property, then I don’t believe the Statute of Frauds applies (but I’d love for you to show me otherwise)
Thanks

[Image removed by sender.]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.commailto:MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

[Image removed by sender.]

U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Arlene C. Udick
Sent: Tuesday, May 06, 2014 1:46 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

Dear Manny,

I may be missing something, but I believe the 2 claims are unrelated and that you can go forward with the eviction, notwithstanding the alleged oral option to purchase.  It seems that the circuit court case has a statute of frauds issue, and unless the lawyer took some action relying on the option to purchase, the case should be dismissed for failure to state a claim since there is no writing to enforce the option.  Arlene

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Tuesday, May 06, 2014 12:05 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Transfer Case from Circuit to County

Does anyone have case law/practical suggestions for this fact situation?
My client gives notice to leave/files for eviction against his month to month tenant as my client has a buyer for the property. I file for eviction  in county court, but tenant (who is a lawyer) files suit in circuit court claiming he has an oral option to purchase the property by matching the price.
Any case law on this? I’m drawing a blank on my research as it appears to be under Rule 1.060 but there are no cases on this narrow issue
Thanks in advance
Manny

[Image removed by sender.]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.commailto:MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

[Image removed by sender.]

U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

I don’t like to file those but yes, we may have to
Thanks

[http://www.richmangreer.com/images/logo.gif]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

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U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Tuesday, May 06, 2014 8:51 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

File a 57.107(1) motion and see what the lawyer/tenant does. Remember you must send the motion to the tenant and hold for 21 days before filing with the court.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Tuesday, May 06, 2014 2:54 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

Greg,
I’ll have to read those cases as I was relying on Old Port Cove (copy attached) which reads:

[10] Headnote Citing References Where they discuss the rationale, courts adopting the majority view generally conclude that an option or right of first refusal creates an interest in property. Ferrero, 536 A.2d at 1139 (“As rights of first refusal are interests in property, the great majority of American jurisdictions have applied the Rule Against Perpetuities to such rights.”); see, e.g., Stuart Kingston, 596 A.2d at 1384; Gore, 867 P.2d at 338; Martin, 348 N.E.2d at 309; Pace, 347 So.2d at 1317; Melcher, 435 P.2d at 114; McHugh, 380 S.E.2d at 874; Smith, 296 S.E.2d at 854. In Florida, however, an option does not create a legal or equitable interest in property. As we explained over fifty years ago, “until an optionee exercises the right to purchase in accordance with the terms of his option he has no estate, either legal or equitable, in the *1287 lands involved.” Gautier v. Lapof, 91 So.2d 324, 326 (Fla.1956). We have since reiterated that principle. See Leon County Educ. Facilities Auth. v. Hartsfield, 698 So.2d 526, 530 (Fla.1997) (“[T]his Court has long held that the status of parties to the ordinary lease with an option to purchase remains that of landlord and tenant until the option is exercised and that the lessee has no equitable interest in the property.”); BancFlorida v. Hayward, 689 So.2d 1052, 1054 (Fla.1997) ( “Under Florida law, an option to purchase property creates neither an equitable interest nor an equitable remedy.”).

As these cases show, Florida law has consistently held that an option does not create an interest in land. Therefore, a right of first refusal—which may or may not ripen into an option depending on whether the owner decides to sell, see, e.g., Pearson, 497 So.2d at 900—cannot create an interest in land, either.

[Image removed by sender.]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.commailto:MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

[Image removed by sender.]

U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Gregory Dawson
Sent: Tuesday, May 06, 2014 2:41 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

Section 68.03 of the Fla. Real Estate Transactions (Boyer) treatise indicates that an option to purchase real estate is subject to the statute of frauds, citing Minton v. Spivey, 505 So.2d 476 (Fla. 5th DCA 1987). Other cases taking that position are McCollum Aviation, Inc. v. CIM Associates, Inc., 446 F. Supp. 511 (S.D. Fla. 1978) and Kamil Gowni & Shenody, Inc. v. BP Corporation North America, Inc., 2003 WL 24051561, 2003 US Dist. LEXIS 26843.

websitehttp://www.edcolaw.com/ | vCardhttp://edcolaw.com/vcards/ECA-vc-gdawson.vcf | maphttp://www.edcolaw.com/contact | emailmailto:gdawson@edcolaw.com
[Description: http://edcolaw.com/vcards/ECA-sig3-gdawson.gif]http://www.edcolaw.com/

The information contained in the preceding message is intended solely for the use of the person(s) to whom it is addressed. The preceding message may contain material that is privileged or protected from disclosure under applicable law. If you are not the intended recipient or the individual responsible for delivery to the intended recipient, (1) do not use, disseminate, forward, or copy the preceding message and (2) please notify sender immediately by e-mail or telephone and destroy the preceding message. Thank you.

Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a federal tax law issue, unless expressly stated otherwise, the advice is not intended or written to be used, and it cannot be used, by the recipient or any other taxpayer, for the purpose of avoiding federal tax penalties, and was not written to support the promotion or marketing of any transactions or matters.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Tuesday, May 06, 2014 1:57 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

Arlene,
The case is more complicated than it seems because the exercise of an option (if one does exist in this case) may create an equitable conversion of the oral contract to purchase. Again, this is a little complicated but Florida actually follows the minority rule and holds that an option to purchase is not an interest in real property. If it’s not an interest in real property, then I don’t believe the Statute of Frauds applies (but I’d love for you to show me otherwise)
Thanks

[Image removed by sender.]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.commailto:MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

[Image removed by sender.]

U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Arlene C. Udick
Sent: Tuesday, May 06, 2014 1:46 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Transfer Case from Circuit to County

Dear Manny,

I may be missing something, but I believe the 2 claims are unrelated and that you can go forward with the eviction, notwithstanding the alleged oral option to purchase.  It seems that the circuit court case has a statute of frauds issue, and unless the lawyer took some action relying on the option to purchase, the case should be dismissed for failure to state a claim since there is no writing to enforce the option.  Arlene

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Tuesday, May 06, 2014 12:05 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Transfer Case from Circuit to County

Does anyone have case law/practical suggestions for this fact situation?
My client gives notice to leave/files for eviction against his month to month tenant as my client has a buyer for the property. I file for eviction  in county court, but tenant (who is a lawyer) files suit in circuit court claiming he has an oral option to purchase the property by matching the price.
Any case law on this? I’m drawing a blank on my research as it appears to be under Rule 1.060 but there are no cases on this narrow issue
Thanks in advance
Manny

[Image removed by sender.]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.commailto:MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

[Image removed by sender.]

U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message..