Real Estate Litigation

Disputes involving real estate can arise in various ways. Most people do not realize that they generally only have 20 days, and in some instances less time, to file a response to a lawsuit once they’ve been served or their rights to defend it may be lost forever. It is therefore critically important that you retain a Florida litigation attorney immediately at the first sign that trouble may be on the horizon.

Homeowners Associations Litigation

Homeowners Associations (HOA) almost always have covenants that regulate how members can renovate their home, whether they can keep pets, how much they need to pay in fees, and more. Many times, disputes arise between homeowners and HOA’s over what members can and cannot do. When this happens, an HOA may seek an “injunction” against the member either asking the court to order the member to do something or refrain from doing something. It is important to remember that the Supreme Court of Florida has gone out of its way, to emphasize that Mandatory Injunctions are an “extraordinary” “harsh” and “drastic remedy” that are looked upon with disfavor” And therefore should be used “sparingly” and “cautiously”. A pleading seeking a temporary injunction must state a cause of action for a permanent injunction or for a temporary injunction as ancillary relief to another cause of action. The requisites for issuance of a temporary injunction are (1) the inadequacy of a remedy at law; (2) the likelihood of irreparable injury if not issued; and (3) the probability of success in the action by the party seeking relief. The Complaint must allege established facts, which it plainly does not do here, and not just general allegations of irreparable injury. Conclusions of law and opinions of the pleader will not satisfy an injunction. Conclusory allegations of irreparable injury or inadequate legal remedy, like the ones here, simply do not suffice. The same concept applies for a final injunction, which involves three elements: 1) a clear legal right; –plaintiff does not have a clear legal right. 2) an inadequate remedy at law; -(they have an adequate remedy at law article 6 of the declaration to come onto the property and fix it and also to fine). 3) irreparable harm will arise absent injunctive relief. The outcome of an action for injunction turns on whether the plaintiff can make the required showing of proof. A well-versed competent attorney can help ensure a defendant’s rights are entirely protected.


“Partition” is the division, among several people, of property that belongs to them as co-owners or co-proprietors. It is an equitable and historical remedy, now codified in F.S. 64.011-64.091, that is highly favored by Florida law; specifically, partition preserves peace, assist with the transfer of title, and eliminates the inconvenience of joint ownership. Partition principles are applied flexibly to arrive at a fair, equitable, and just conclusion.

Property Subject to Partition

It may surprise you to learn that both real estate and personal property can partitioned. Similarly, mineral rights owned by more than one person are also subject to partition. Jointly owned property owned between joint tenants, tenants as copartners, joint tenants with a right of survivorship, or tenants in common can be partitioned. A plaintiff must show an immediate right to possess property before that party can seek a partition of it, therefore remaindermen and reversion holders are not entitled to obtain relief. However, partition is only available between concurrent possessory estates, not between holders of future interests, nor between current possessory interests and future interests.

Scope of Remedy

When an action for partition is adequately filed, all relevant disputes regarding the property should be resolved in that case to afford complete relief to the parties. Issues related to the record ownership and possessory rights of the property may be determined in the partition action. Adverse claims or disputes as to legal title or rights of possession do not prevent the filing and maintaining of a partition action. The court may order an accounting and otherwise adjust the rights of the parties to reach a final and equitable result. The court may settle the matter of a judgment lien against the subject property. If, for some reason, the interest of a party cannot be determined in the partition action, proceedings under F.S. Chapter 64 (the partition statutes) may be stayed until that interest is determined in a supplementary cause. Terra Ceia Estates v. Taylor, 68 Fla. 261, 67 So. 169 (1914).

Agreements Not to Partition

A party may be prevented from seeking partition by entering into an agreement not to invoke this relief. These agreements, whether express or implied, are generally enforceable unless they are unduly restrictive.

Mandatory Nature of Relief

Because of the salutary public policy considerations underlying partition, courts are compelled to grant the relief when a proper case has been made. Family relationships and relative financial standing of the parties are not proper grounds for the court’s consideration in granting the remedy. The power of a court to deny partition will be invoked only in rare cases in which a manifest injustice would otherwise result from its award. Partition, however, must be expressly requested in the pleadings; without this request, courts cannot order the relief, even if it is intended to achieve an equitable or judicially desirable result.


F.S. 64.022 provides that “[p]artition shall be brought in any county where the lands or any part thereof lie which are the subject matter of the action.” The partition action may not be filed in a county other than where the land is located, even if related claims could properly be filed in a “foreign” venue.

Specific Performance

What do you do when a party enters a contract but will not follow through it? In some instances the court can order the breaching party to perform. Specific performance is an equitable remedy rooted in contract law that occurs when one party is requesting the court order that the other party perform a specific act, such as to complete performance of the contract. It is most often seen where one party is requesting that the contracting party be forced to follow through with the sale of their property. However, specific performance will not be ordered where enforcement of the contract would be inequitable or would impose hardship unless the hardship has been fairly and voluntarily assumed as a part of the contract sought to be enforced. In another words, specific performance is not a right but rather will only be granted in the discretion of the court where it is strictly equitable and fair. Along those lines, specific performance of a contract will not be ordered when its enforcement would be unconscionable or when it would harm or produce injustice or hardship to order such relief. In deciding whether to grant a complaint for specific performance, a court must examine the particular facts surrounding the situation and typically will grant the request when it would subserve the ends of justice. When a defendant asserts that a claim that specific performance would be inequitable it is incumbent on the defendant to establish all facts that support his defense.

Cancellation of a Deeds and other Instruments

Sometimes it is necessary to seek an order from the court to cancel or rescind a deed or other instrument such as where undue influence or some sort of fraudulent activity occurred surrounding its making or transfer. A suit for the cancellation of an instrument may be brought against anyone who claims to have rights under the instrument or whose rights or privileges may be affected by a cancellation. Generally, a court of equity will exercise its jurisdiction to order instruments absolutely void at law to be delivered up and canceled, at least where some equitable ground for relief exists. For example, pursuant to section 689.01, Florida Statutes to transfer land, the writing must be signed in the presence of two subscribing witnesses by the party transferring the land. Failure to adhere to this strict requirement can result in the deed being cancelled if challenged.

Constructive Trusts and Equitable Liens

Constructive trusts and equitable liens are two types of distinct equitable remedies designed to prevent one party from unjustly benefiting from the money or property of another. A plaintiff must prove the following elements by clear and convincing evidence in order for the court to impose a constructive trust:

  1. An express or implied promise;
  2. A transfer of real property and reliance thereon;
  3. The existence of a confidential relationship;
  4. Unjust enrichment

A constructive trust seeks to restore property to the rightful owner and prevent unjust enrichment. Laches and estoppel may provide a complete defense to the imposition of a constructive trust.

Similarly, an equitable lien is designed to prevent unjust enrichment when there is no adequate remedy at law. An equitable lien is a lien imposed against property by the court in the absence of any statutory or contractual basis. Equitable liens arise in different situations and are imposed as an incident to the debt. In essence, an equitable lien creates an interest in the property that is held and, in some cases, allows the lienholder to sell the property to enforce the lien. Importantly, an action to enforce an equitable lien has a one-year limitations period if it arises from the furnishing of labor, services, or material for the improvement of real property.

Declaratory Relief

Section 86.031 of the Florida Statutes provides that the court can declare the rights of the parties before or after the contract is breached. Declaratory relief takes place where one party asks the court to determine the respective rights and interests of the parties when a dispute occurs. This allows the parties to a justiciable controversy to obtain a declaration of a right in an action under the declaratory judgment statute, even if other remedies exist. The statute allows the trial court broad authority to craft relief in addition to the declaration. The availability of other relief facilitates a resolution of the entire controversy in a single lawsuit. Even though the declaratory judgment statute could be used to declare the rights of the parties in many kinds of controversies, the statute is most often employed to determine the validity of legislation, to construe the provisions of a contract, or to resolve the existence of insurance coverage. For example, a controversy over the existence of insurance coverage can be resolved in a third-party claim against the insurance carrier in a pending action for damages, or in a separate declaratory judgment suit.

A party must establish the existence of a present controversy between the parties concerning a right or privilege, but there is no need to show that the right or privilege in question has been violated at the time the suit is filed. To the contrary, the parties to a present justiciable controversy may obtain declaratory relief regarding an event that has not yet occurred. The declaratory judgment statute is designed to provide a practical remedy for the resolution of a controversy that has not yet reached the stage at which the rights of the parties can be enforced by other legal means. In this way, the declaratory judgment statute may be invoked as a preventive measure to avoid the possibility for more complex litigation in the future.

Have You Been Sued Over a Real Estate Matter?

If you are involved in real estate dispute, your best option is to contact an attorney experienced in representing clients’ similar disputes. Representation may consist of mediation or arbitration so that you can resolve the dispute without a costly and time-consuming legal battle. However, sometimes litigation is unavoidable. Call an Ormond Beach real estate litigation attorney Andrew J. Pascale today and let me fight for and protect your legal rights.

Client Reviews

I contacted Andrew for assistance with the selling of my business. He was very knowledgeable and explained the process to me during the selling of my shop. The documentation was produced very quickly and accurately which made both parties very comfortable with the process. I would highly recommend...


Andrew Pascale was assigned to my cases about 6 years prior. The magnificent work he completed through the years was amazing. He is very detailed and direct with important matters. I felt comfortable with my cases being handled by him. He kept me informed of the status and just what was going on. I...


We were having problems with collections in our business. Andy stepped up quickly to take over the process from our last attorney.


Contact Us

  1. 1 Contact Us Now
  2. 2 Over a Decade of Experience
  3. 3 Speak With an Attorney Directly
Fill out the contact form or call us at (877) 667-1211 to schedule your consultation.

Leave Us a Message