Enforcing a covenant which association counsel allegedly knew was extinguished by the Marketable Record Title Act was the subject of two nearly identical decisions, Rhonda Hollander P.A. v. Adrien, Case No. 3D19-1651 (Fla. 3d DCA, April 8, 2020), and Rhonda Hollander, P.A. v. Fortunado, Case No.: 3D19-1652 (Fla. 3d DCA, April 8, 2020). In each of these two very short, two paragraph decisions the appellate court denied a petition for a writ of certiorari seeking to quash a denial of the law firm’s motion to dismiss the plaintiff/respondents fourth amended complaint. Apparently, the law firm asserted a litigation privilege which the trial court did not accept.

The plaintiff’s below alleged a Florida Consumer Collection Practices Act claim against a lawyer and law firm for sending “threatening collection letters” when the senders allegedly had “actual knowledge” that pursuant to the Marketable Record Title Act the Declaration was “expired and unenforceable.”

In each matter the petition was denied, the appellate court holding that the litigation privilege does not apply in these circumstances.

The appellate court appears to have concluded that the statutory Consumer Collection Practices Act prohibitions in Section 559.72 Fla. Stat. (2014), prevail over the litigation privilege. The statutory debtor protections were apparently triggered by the alleged “actual knowledge” of unenforceability.

Interestingly, it appears that the appellate court did not have an issue with the litigation privilege applying to the mandatory pre-suit “notice of intent” demand letters, apparently accepting that the litigation privilege otherwise would extend to certain pre-suit communications that were intertwined with the complaint. That approach appears to have been the direction taken in other recent decisions.

Many thanks to Mr. Christie for also promptly providing the decisions last month!

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

© 2020 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

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