Monthly Archives: December 2012

Riparian Rights in Florida

By Christopher M. Cobb, Esquire

Ownership of waterfront property is very desirable in Florida and often involves unique real property considerations. When it comes to private waterfront property ownership, it can be difficult to distinguish where the private land rights cease and the sovereign land ownership begins. As a result, a subset of real property law has emerged to address what is called “riparian rights.” Riparian rights include the rights of ingress, egress, boating, bathing, fishing and even the right to an unobstructed view of the water. Examples of situations that riparian rights address include: (1) the general use of water adjacent to property, (2) wharfing out to navigability in the channel, (3) actual access to navigable waters; and, (4) the right to accretions. Shore Village Property Owners’ Ass’n, Inc. v. State Dept. of Environmental Protection, 824 So.2d 208 (Fla. 4th DCA 2002). Such rights inure to the owner of the upland; however, the actual land covered by the water is not owned by the upland owner. Read Full Post

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Liens for Interior Design Services

By Christopher M. Cobb, Esquire

The profession of interior design has been a consequence of the continued development of interior space and complex architecture. Typically, the interior designer is tangential to the overall design team of a construction project. The pursuit of effective use of space is of primary importance and functional design has contributed to the development of the contemporary interior design profession. An interior designer will take on projects that include arranging the basic layout of spaces within a building. Additionally, they will need a fundamental understanding on the effects of color, acoustics, lighting and temperature in the designed space.
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A Creditor’s Perspective on Avoiding the Bankruptcy Code’s Automatic Stay

By Hans Wahl, Esquire

The first consideration for creditors during bankruptcy proceedings is the Automatic Stay provision of the Bankruptcy Code. Section 362 of the United States Bankruptcy Code provides the provisions governing the Automatic Stay. The Automatic Stay works as an immediate “injunction” that halts all actions by creditors and potential creditors to collect on pre-bankruptcy debts from a debtor who has declared bankruptcy.

The Automatic Stay applies in all bankruptcy proceedings, including Chapters 7, 11 and 13, and this provision is invoked automatically and immediately upon the debtor filing for bankruptcy. The Automatic Stay is a benefit to debtors because once invoked it works to immediately stop all actions and proceedings to recover claims against the debtor. Conversely, it is a detriment to creditors as they can no longer continue with either collection efforts or legal action for their claims against the debtor.

However, there are exceptions to the Automatic Stay which provide relief to creditors. For creditors seeking to avoid the Automatic Stay, there are three subsections of Section 362, which can be invaluable if taken advantage of properly. These include §§§ 362(b), (d) & (f), which can be considered the creditor’s best allies within the Bankruptcy Code. Read Full Post

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Tortious Interference with Advantageous Business Relationship: When Does Competition Become Interference?

By Christopher M. Cobb, Esquire

Competition is the rivalry among sellers trying to achieve the objectives of increasing profits, market share, and sales volume by varying the elements of the marketing: price point, product identity, distribution levels, and promotion. Merriam-Webster defines competition in business as “the effort of two or more parties acting independently to secure the business of a third party by offering the most favorable terms.” Sometimes those two competing parties push the boundaries of fairness and even cross it. Read Full Post

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Condominium Construction Defect Certification under 718.301(7), Florida Statutes

By Christopher M. Cobb, Esquire

Condominium living is a way of life in Florida and condominium associations are creatures of the Florida Statutes. “The peculiar features of condominium development, ownership, and operation require the providing of procedural vehicles for handling disputes affecting condominium unit owners concerning matters of common interest”. Avila South Condo Ass’n, v. Kappa Corp. 347 So.2d 599 (Fla. 1977). Such vehicles are provided in the statutes and rules of procedure, but one curious statutory provision requires the association to examine and certify the construction defect via licensed engineer and/or contractor. Read Full Post

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Condominium Construction Defect Class Actions

By Christopher M. Cobb, Esquire

Condominium living is a way of life in Florida and condominium associations are creatures of the Florida Statutes. A condominium association’s capacity to sue or be sued is one of the enumerated rights created under Chapter 718. However, it is the condominium association class action Rule 1.221 which grants the association entitlement to pursue class action litigation on behalf of its members. Read Full Post

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Termination of an LLC Member Upon Bankruptcy Filing

By Kelly A. Karstaedt, Esq.

What happens to the rights of a member of a limited liability company when that member files bankruptcy? In Florida, that member is automatically terminated from membership in the LLC and any remaining interests in the LLC become property of the bankruptcy Trustee. But is it really that simple?
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