Forum

• • Topic
  • Voices
  • Posts
  • Last Post
• • Partition in Florida: Standing Room Only In Florida, partition is a statutory remedy by which a joint owner of real estate can ask a court to divide the property. See generally Chapter 64, Florida Statutes. Partition can be physical, whereby the subject land itself is divided amongst the joint owners, or it can be via sale and division of the proceeds to the extent a physical partition will result in some type of prejudice to the owners. See §64.071. The partition remedy enables the owners of the subject land to protect their respective interests despite any disagreements as to how the property should be used or whether it should be sold. Florida law also contemplates partition of personalty by the same procedures as are applicable to realty. See §64.091.   Although the remedy is widely recognized throughout the American and English common law and has been codified within the Florida Statutes for nearly 200 years, it is often incorrectly invoked by practitioners and misconstrued by judges. The focus of this topic will be the standing requirement for partition as set forth in §64.031, which states:   “Parties.—The action may be filed by any one or more of several joint tenants, tenants in common, or coparceners, against their cotenants, coparceners, or others interested in the lands to be divided” (emphasis added).   The above provision therefore clearly and expressly limits the partition remedy to three classes of property owners – beginning with joint tenants. A joint tenancy is an interest in property created simultaneously amongst two or more owners. It contemplates each joint tenant having an equal, undivided interest in the subject property. See Siewak v. AmSouth Bank, 2006 WL 3391222 at 5, n.4 (M.D.Fla. Nov. 22, 2006) (“Here, Plaintiffs’ holding of the property as joint tenants gives each Plaintiff a common and undivided right to the entire value of the claim.”) A joint tenancy also creates a “right of survivorship” whereby the death of a joint tenant automatically (that is, without the need for probate) transfers the decedent’s interest to the remaining joint tenant(s). Under Florida law, a joint tenancy requires unity of interest, title, time and possession. See Weed v. Knox, 157 Fla. 896, 900 (1946); see also Beal Bank, SSB v. Almand and Associates, 780 So.2d 45, 53 (Fla.2001) (“…the owners’ interests in the property must be identical, the interests must have originated in the identical conveyance, and the interests must have commenced simultaneously.”)   In contrast, a tenancy in common –while also a form of joint ownership amongst two or more persons - requires only unity of possession. Id. (“Tenancies in common, joint tenancies, and tenancies by the entireties all share the characteristic of unity of possession; however, tenancies in common do not share the other characteristics or unities.”) This means that while a tenancy in common must give each tenant a simultaneous right to possession according to such tenant’s interest in the subject property, each tenant may nevertheless own different percentages and their respective interests can arise separately from unrelated conveyances at different times.   A coparcenary is nearly identical to a tenancy in common, in that it consists of joint ownership of property with each coparcener owning an undivided, transferable interest. Unlike tenancies in common, however, a coparcenary arises only by inheritance from a common ancestor.   As can be discerned from the above definitions, the three classes of ownership eligible for partition under §64.031 all share the “unity of possession” – meaning each ownership interest exists simultaneously and jointly, such that the owners share the concurrent right to possession of the subject property. It therefore seems clear that the remedy is not available to one who has no current possessory interest in the property sought to be partitioned. See, e.g., Garcia-Tunon v. Garcia-Tunon, 472 So.2d 1378, 1379 (Fla. 2d DCA 1985) (“The purpose of [§64.031] is to provide for partition only among those who have joint interests”, emphasis added). If, for example, a litigant is pursuing one or more claims in an effort to gain possession of the property in the first instance (such as a mortgage foreclosure action), partition is unavailable under Florida law. See, e.g., Rountree v. Rountree, 101 So.2d 43, 44 (Fla.1958) (partition action cannot be used to settle a disputed title to property).   Yet, on two separate occasions, in two unrelated cases I was defending before different judges, partition claims were allowed to proceed in favor of plaintiffs who did not have a current possessory interest in the property sought to be partitioned. In both cases, the operative complaint contained clear allegations showing that the plaintiffs were neither joint tenants, tenants in common nor coparceners and, therefore, entirely ineligible to claim partition as per the express terms of §64.031.   The first was before Judge Martin Bidwill in the Seventeenth Judicial Circuit Court in and for Broward County, Florida. Upon hearing my argument in favor of dismissal of the partition claim pursuant to the statute and various Florida precedent holding that the remedy could not be invoked in the absence of a current possessory interest, Judge Bidwill calmly (and rather shockingly) responded: “What’s the harm?” Dear reader, please allow me to unpack this fairly remarkable statement. In the face of binding precedent (including from the Florida Supreme Court) and a controlling statute (§64.031) which collectively and inarguably prohibited the use of the partition remedy in the manner being attempted in a case before him, Judge Bidwill simply did not care. In his view, my client wasn’t suffering any “harm” by the allowance of a patently-defective partition claim. My client, however - after incurring the attorneys’ fees to defend the claim under the threat of losing his house if the claim ultimately succeeded - surely did not share Judge Bidwill’s apathy. In a courtroom like that, there is no democracy. It is a dictatorship.   The second was before Judge Abby Cynamon in the Eleventh Judicial Circuit Court in and for Miami-Dade County, Florida. When I argued my motion to dismiss the partition claim pending against my client in that case, Judge Cynamon played it safe by defaulting to a common legal principle. She heard me argue that the plaintiff lacked standing to seek partition (because the allegations and attachments to his complaint clearly established his lack of a current possessory interest in the property sought to be partitioned), and therefore reasoned that standing is an affirmative defense. As a matter of Florida civil procedure, affirmative defenses typically cannot be asserted via motion and must instead be pleaded in an answer. See Malden v. Chase Home Finance, LLC, 312 So.3d 553, 554-55 (Fla. 1st DCA 2021) (trial court cannot look beyond the complaint’s “four corners” when considering a motion to dismiss, and affirmative defenses typically require proof of matters outside the complaint’s allegations). The lone exception to this rule, as recognized in Malden, is where (as in my case before Judge Cynamon) the defense appears on the face of the complaint – i.e., the plaintiff’s own allegations and/or attachments to the complaint establish the basis for the defense. That’s what I argued to Judge Cynamon. She denied my motion immediately thereafter.   These actual courtroom experiences illustrate a frightening reality for litigants: having the stronger position - being legally “right” - in no way assures victory. Whether due to judicial bias or ignorance, legally-defective rulings result in attorneys’ fees being incurred unnecessarily and court dockets clogged with cases that should have been quickly disposed.   To be sure, there are many competent judges sitting today that would quickly dispose of the partition claims in my cases. If any of you ever get sued by a non-owner of your property for partition, pray that your case ends up before one of them.

    Started by: FPS

  • 1
  • 1
  • January 31, 2023 at 10:40 pm

    FPS

  • ADA Title III defense – a primer for public accommodations Title III of the Americans with Disabilities Act (“ADA”, 42 U.S.C. §12181 et seq.) indisputably serves a laudable purpose. It prohibits discrimination on the basis of disability by places of public accommodation – which includes any public establishment such as restaurants, hotels, retail shops, etc. See §12182. Congress intended the Act to be enforced by, among other means, private right of action. See §12188(a). Private plaintiffs who personally encounter accessibility barriers are therefore permitted to sue the public accommodation for injunctive relief requiring it to remove the barrier. See §12188(a); see also 42 U.S.C. §2000a-3. The ADA also permits an award of prevailing party attorneys’ fees. See 42 U.S.C. §12205. Notably, damages are not available to Title III plaintiffs. Amidst the legitimate Title III claims, however, are those which are filed for fraudulent, ulterior motives. There is an unfortunate subset of illegitimate claims that are pursued solely for attorneys’ fees, which are often shared between the attorney and the plaintiff in contravention of bar rules. See, e.g., https://www.adatitleiii.com/2019/08/florida-judge-sanctions-serial-ada-plaintiff-alexander-johnson-and-attorney-scott-dinin/. These claims are typically concocted by unscrupulous lawyers who target establishments or websites with cases filed by serial plaintiffs in name only, having never actually visited the subject of the lawsuit. Nevertheless, proving an ongoing fraudulent enterprise between ADA plaintiffs and their counsel will rarely be possible. Many defendants opt to quickly settle these cases for a sum less than it would cost to expose the litigation as abusive. To be clear, settlement should absolutely be pursued whenever it is the cheapest option. There are, however, some cases in which a successful motion to dismiss may cost less than the plaintiff’s settlement demand. In those cases, defense counsel should strive to defeat such claims on the merits. The serial nature of many Title III claims, frequently based upon boilerplate allegations copied and pasted from template pleadings shared amongst plaintiffs’ attorneys, creates various defensive options. These superficial, assembly-line claims commonly suffer from a misreading of the controlling statutes. The diligent defendant may have an opportunity to quickly end the litigation and, in some cases, obtain a fee award against the plaintiff to the extent a defective claim is not voluntarily dismissed. Please note that the following discussion will primarily rely upon prevailing Title III law from within the U.S. Eleventh Circuit, and therefore may not be applicable in other jurisdictions. I. Physical architectural barriers Let’s start with those cases in which the plaintiffs are alleging architectural barriers, such as insufficient clearance under tables, a lack of wheelchair-accessible ramps, etc. Let’s further assume that the alleged barriers do in fact exist, in which case the plaintiff will likely obtain the injunctive relief sought along with a prevailing party fee award if the case goes to trial. This means the defendant will be liable for the expense of complying with the injunction, plus the fees and costs incurred by the plaintiff (in addition to, of course, all of its own fees and costs incurred throughout the litigation). This is a worst-case scenario for the public accommodation, but it is by no means inevitable. A better strategy is to simply fix the barrier voluntarily, without waiting for an adverse judgment mandating the remediation. It is in the accommodation’s best interest to quickly eliminate it lest it find itself the target of further ADA litigation. Just like there is no requirement for the plaintiff to give pre-suit notice, there is absolutely no impediment under the Act to a defendant voluntarily fixing the barrier after litigation has been filed. However, some plaintiffs will attempt to circumvent a self-help defense by shifting the target of the litigation as it proceeds. For example, the complaint may identify particular barriers in a qualified manner (such as “including, but not limited to” and the like) so as to permit the plaintiff to raise new barriers if those named in the complaint are fixed voluntarily. The reasons why this type of “moving target” offense is legally defective, and therefore unsustainable, are beyond the scope of this topic. Suffice it to say that the diligent defendant will strive to limit the plaintiff to pursuing only those barriers expressly identified in the complaint. It inarguably benefits the defendant to voluntarily remediate, because there remains nothing for the court to enjoin once the barrier(s) sued upon have been removed. In other words, the case becomes moot. See Kennedy v. Nick Corcokius Enterprises, Inc., 2015 WL 7253049 at 2-3 (S.D.Fla. Nov. 17, 2015); Access 4 All, Inc. v. Bamco VI, Inc., 2012 WL 33163 at 6 (S.D.Fla. Jan. 6, 2012) (acknowledging that “federal courts have found ADA claims moot” based upon the defendant’s voluntary implementation of structural modifications); National Alliance for Accessibility, Inc. v. Walgreen Co., 2011 WL 5975809 at 3 (M.D.Fla. Nov. 28, 2011) (acknowledging that federal courts have dismissed ADA claims as moot when the alleged architectural violations have been remedied after the complaint was filed “[i]n a number of cases”); Kallen v. J.R. Eight, Inc., 775 F.Supp.2d 1374, 1379 (S.D.Fla.2011) (where parties agreed that nine of the architectural violations alleged in the complaint were voluntarily remediated by the defendant, “the Court finds that those nine claims are rendered moot and subject to dismissal for lack of jurisdiction.”) Once the case is rendered moot, the plaintiff loses statutory entitlement to attorneys’ fees and costs. Id. at 1381 (“A Plaintiff who initiates a lawsuit that causes the Defendant to voluntarily remedy ADA violations is not a prevailing party for purposes of attorneys' fees, and is not entitled to collect costs and fees.”) The diligent defendant avoids having to pay the plaintiff any fees or costs, while minimizing its own, by voluntarily fixing the barrier and seeking a dismissal as early as possible. II. Intangible barriers Title III plaintiffs have increasingly targeted intangible accessibility barriers in recent years. As distinguished from physical architectural features which impede the use of a facility, intangible barriers are those which prevent a disabled person from exercising an informational advantage offered by the public accommodation. They can consist of websites that are incompatible with screen reader software, retail gift cards without braille lettering, or even gas pump video content which lacks closed captioning. These cases rest upon an inaccurate presumption: Title III permits the plaintiff to dictate that a particular “auxiliary aid and service” must be offered by the public accommodation. For example, cases targeting websites will exclusively focus upon allegations that the site lacks compatibility with screen reader software (text to speech software used by the visually impaired to read aloud text displayed on the screen) and is therefore not compliant with the ADA. However, the relevant Title III provisions along with federal regulations implementing them clearly provide that the public accommodation may choose for itself any appropriate means to effectively communicate with the disabled. For example, 42 U.S.C. §12182(b)(2)(A)(iii) provides that “discrimination” under Title III includes: “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden …” (emphasis added) Unless the place of public accommodation can establish that it would result in a fundamental alteration or an undue burden, it is expressly required to offer “auxiliary aids and services” that will ensure equal access by disabled persons. Importantly, §12182(b)(2)(A)(iii) specifies that a public accommodation discriminates only to the extent it fails to offer any auxiliary aids and services whatsoever, i.e., “because of the absence of auxiliary aids and services”. No particular auxiliary aids and services are mandated, nor does the statute impose liability merely because a public accommodation neglects to ensure that its website is compatible with screen reader software. Various examples of “auxiliary aids and services” are listed at 28 C.F.R. §36.303(b): “Examples. The term ‘auxiliary aids and services’ includes- (2) Qualified readers; taped texts; audio recordings; Brailled materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision …” (emphasis added) Notably, screen reader software is merely one example of an auxiliary aid and service; places of public accommodation are otherwise permitted to rely upon “other effective methods” of delivering visual materials to the visually impaired. Subsequent portions of the cited regulation emphasize this. See 28 C.F.R. §36.303(c)(1)(ii): “(1) A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. … (ii) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.” (emphasis added) The federal regulations implementing Title III therefore emphasize that the place of public accommodation ultimately has sole and absolute discretion to determine which “auxiliary aids and services” it must offer in order to ensure effective communication with disabled persons. See, e.g., Price v. City of Ocala, Florida, 375 F.Supp.3d 1264, 1271 (M.D.Fla. 2019) (“[A]n agency with an inaccessible Web site may also meet its legal obligations by providing an alternative accessible way for citizens to use the programs or services, such as a staffed telephone information line”, citing 28 C.F.R. §Pt. 35, App.A, emphasis added); Silva v. Baptist Health South Florida, Inc., 856 F.3d 824, 835-36 (11th Cir.2017) (“If effective communication under the circumstances is achievable with something less than an on-site interpreter, then the hospital is well within its ADA and RA obligations to rely on other alternatives. Indeed, the implementing regulations clarify that ‘the ultimate decision as to what measures to take rests with’ the hospital …”, emphasis added); Petrano v. Nationwide Mut. Fire Ins. Co., 2013 WL 1325045 at 8 (N.D.Fla. Jan. 24, 2013): “Under the plain language of the regulations, then, no single form of auxiliary aid and no single type of communication is mandated. Rather, the code directs that public accommodations provide appropriate aids that will ensure effective communication. Notably, the code specifically provides that the ‘ultimate decision as to what measures to take rests with the public accommodation.’ … See Burkhart v. Washington Metropolitan Area Transit Auth., 112 F.3d 1207, 1213 (D.C.Cir.1997) (noting that ‘[n]othing in the ADA itself or its implementing regulations dictates that a disabled person must be provided with the type of auxiliary aid or service he requests.’)” (emphasis added) After reviewing the foregoing authority, it becomes clear that the increasingly prevalent Title III website cases are completely misguided. Plaintiffs have no legal basis to dictate that a public accommodation’s website must be compatible with screen reader software. If, for example, the establishment provides a phone number that can be used by the visually impaired to speak with an employee who will read any portions of the establishment’s website to the extent such portions are not compatible with screen reader software, the accommodation is in full compliance with the ADA. All that is required is effective communication; how that is achieved remains up to the accommodation. I will appreciate any feedback regarding the foregoing analysis, particularly from those of you who practice in this area on the plaintiffs’ side. Please feel free to point out anything I may have overlooked. Thanks for reading!    

    Started by: FPS

  • 1
  • 1
  • March 21, 2021 at 8:04 am

    FPS

•