This Article explores how Florida courts address inverse condemnation claims involving navigable water by analyzing the traditional elements of and standing requirements for a takings claim, as well as the limitations riparian landowners face when filing such a claim. This Article navigates the procedural and substantive issues of an inverse condemnation claim emphasizing how Florida courts have excluded certain rights by deeming them a noncompensable right under common law. Much of the value colloquially associated with having waterfront property is not anchored in compensable legal rights according to Florida law. Finally, this Article demonstrates how Florida landowners’ inverse condemnation claims are dead in the water when their property is physically under navigable water since the landowners cannot satisfy the requirements necessary for an inverse condemnation claim.
Category: Issue 2
The recent mortgage crisis-and the subsequent increase in property foreclosure proceedings-has left Florida’s real property law in a state of flux. Specifically, a rise in vacant or abandoned properties due to a decrease in home equity has led to a surge of municipal code violations, which affect a purchaser’s rights and duties related to a piece of real property. In light of a real estate practitioner’s duty to ascertain title and determine whether any judgments or leans exist against a seller’s real property before advising his or her client to purchase that piece of real property, these code violations have left practitioners wondering how to properly advise their clients during the purchase process.
This Article addresses numerous issues related to the treatment of code enforcement violations under existing Florida law. Specifically, it discusses whether code enforcement violations run with the land; whether homestead exemptions apply to attempts to enforce and collect code enforcement liens; how the “first in time, first in right” rule applies to duly filed and recorded code enforcement liens and mortgages that encumber the real property; what effect the Florida Supreme Court’s decision in City of Palm Bay v. Wells Fargo, N.A. should have on real property encumbered by a mortgage and code enforcement lien; whether unrecorded violations affect a current owner’s title to real property; whether code violations begin to accrue on a specific date and how long they last; whether the Due Process Clause of the Fourteenth Amendment of the United States Constitution and the Due Process Clause of Article I, Section 9, of the Florida Constitution compel notice of code enforcement proceedings to protected and interested parties beyond actual owners; and whether there should be one or more code enforcement proceedings in obtaining administrative finality. Addressing each of these open issues in turn, the Author provides a practical and workable understanding of a real estate practitioner’s duty when advising his or her client on the desirability of a real property purchase.
The known harmful effects of second-hand smoke have caused an increase in smoking regulations in Florida over the past twenty years. In 1985, the Florida Legislature enacted the Florida Clean Indoor Air Act with the purpose of expressly preempting indoor smoking regulations promulgated by Florida municipalities to the State. In recent years, the Act’s preemption clause has caused confusion as to whether the State intended to preempt only indoor smoking or both indoor and outdoor smoking regulations. This Article explores the legislative history, recent caselaw, and attorney general opinions discussing the Florida Clean Indoor Air Act’s breadth of preemption in an effort to resolve the confusion.
This Article analyzes the legal obstacles facing children conceived after the death of one or both parents. The Author focuses on problems particular to codified Florida law and proposes revisions that would enable posthumously conceived children to inherit from a deceased parent domiciled in the State. The Author proposes updates to Florida’s parentage, probate, and trust codes, which would allow a narrow provision for posthumously conceived children under the State’s intestacy statutes.
The Author advocates imposing several requirements to account for (1) a decedent’s consent regarding his or her genetic material available for posthumous conception; and (2) efficient estate administration as it relates to potential posthumous conception. The Author incorporates gender-neutral language within the proposed statutory language to ensure that all couples receive predictable outcomes for any resulting posthumously conceived children.
Because of the current financial crisis, a more effective method of regulation to deter the shortsighted behavior that led to the crisis is necessary. Such a method may lie in holding executives accountable to shareholders for a breach of fiduciary duty. Explaining the unique circumstances of the secondary mortgage market that make mandatory disclosures necessary and the relevancy of regulation of this market, this Article proposes federal legislation and discusses how it would resolve the information asymmetry problem. In addition, disclosures in the context of directorial personal liability in light of the current landscape of American corporate law are examined. In conclusion, the Article proposes a regulatory scheme based on disclosures that would unravel these complex transactions in order to promote meaningful decision-making in the boardroom while providing shareholders with an effective tool to hold directors liable if they breach their duties to the corporation.