Wednesday morning the Fourth District Court of Appeal issued what may be the year’s first real “condominium case” CSC ServiceWorks, Inc. v. Boca Bayou Cd’m Ass’n, Inc. case no. 4d 12-0974 (Fla. 4th DCA, March 7, 2018). Or at least it addressed a condominium situation.

The dispute harkens back to old English common law concepts which is especially appropriate as today over seventy of our peers are scheduled to sit for the Condominium and Planned Development Board Certification Exam which is based upon fundamental real property concepts!

The battleground may be familiar, a condominium’s laundry rooms. The warriors just as familiar, the “old” laundry machine company, the “new” laundry machine company, and the condominium association.

Boiled down to essentials, CSC ServiceWorks lease of the condominium’s laundry rooms contained a right of first refusal apparently for a new lease which survived for one year beyond the lease expiration. After a lease renewal period CSC continued to occupy the laundry rooms, paying the condominium association rent on a month to month basis for nearly two years.

Apparently because of owner complaints the Association began a bidding process for a new lease in which CSC participated. Commercial Laundry was selected to be the new lessee and sought CSC to remove CSC’s machines. CSC promised to schedule machine removal, but did not do so. After not responding to a second request for removal, CSC responded to a third advising that there would be scheduling, but again without follow up. Instead, a month after the initial request to remove the machines CSC asserted that CSC would exercise its right of first refusal.

In light of CSC’s refusal to remove its machines, the Association allowed Commercial to disconnect CSC’s laundry machines. CSC’s machines were left in the laundry rooms. Though CSC was never denied access to the laundry rooms when CSC refused to remove its machines the Association demanded removal and provided notice of intent to commence a tenant eviction action. CSC then removed its machines.

CSC filed numerous claims including an unlawful detainer claim that was severed and proceeded to jury trial. The jury rendered a verdict in the Association’s favor.

The appellate court affirmed in large part relying upon the unlawful detainer statute:

No person who enters without consent in a peaceable, easy and open manner into any lands or tenements shall hold them afterwards against the consent of the party entitled to possession.

§82.02(1) Fla. Stat. (2017). The court identified three elements for the cause of action:

(1) plaintiff was in peaceful possession of the property;

(2) plaintiff was ousted of actual possession of the property; and

(3) defendant withheld possession of the property from plaintiff without consent or legal process.

Quoting from Floro v. Parker, 205 So. 2d 363, 367 (Fla. 2d DCA 1967).

It appears from the opinion that as a matter of law that an ouster is not the simple act of disconnecting CSC’s laundry machines and moving the machines to an opposite side of the laundry rooms, but within the leased premises, remaining open to the tenant. CDC’s claimed right to maintain the connections was controlled by the lease which was not at issue in the unlawful detainer proceeding. The court further elaborated that the unlawful detainer action was “about actual physical dispossession of real property, not constructive or useful disposition.”

This decision reminds practitioners that it sometimes it bears looking beyond the Condominium or Homeowners’ Association Acts, and even beyond your client’s contract for remedies and relief, in this case, the common law incorporated into Florida Statutes Chapter 82. It is also of interest in this matter that the machines were disconnected after the lease expired and possession was on a month to month basis. There is also the Court’s legnthly recitation of the requests for removal and CSC’s apparent lack of follow through. Of course, would you really want a jury trial?

Good luck to the Certification Exam takers.

Have a great rest of the week.

P.S. I have some notes on decisions issued since the beginning of the year that will shortly be forthcoming.

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar

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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section

© 2018 Michael J. Gelfand

Michael J. Gelfand

Florida Bar Board Certified Real Estate Attorney

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Attorneys