Tags

, , , , , , ,

A condo owner acquired title subject to an existing mortgage foreclosure, which he apparently was unaware of,  as he was surprised to find a writ of possession on his door on April 10, 2012.  Also surprising,  the Dade Sheriff executed the writ a mere two days later,  catching the owner with many of his possessions still at the premises.  Rather than let the sheriff remove the owner’s personal possessions to the curb,  the associations property manager took it upon himself to have the property placed in the building’s parking garage,  where he placed yellow barricade tape around it, purportedly to deter theft.

Thereafter the owner’s key card was deactivated and he was refused entry to the condominium to recover his possessions.  Later, the association manager called the owner stating that his possessions had been disposed of.   Subsequently the associations security guard asked if he could have the contents of the owner’s storage unit, and upon the owner’s refusal, he was refused the return of his property.

The owner filed suit for conversion and bailment and it was dismissed on motion of defendant.  On appeal,  the 3rd DCA ruled that bailment was inapplicable as the owner had not entrusted his property to the association.  But conversion was applicable, as conversion “constitutes the exercise of wrongful dominion and control over property to the detriment of the rights of the actual owner.

The associations defense of immunity under §83.62(2) of the landlord tenant statute was rejected as a landlord tenant relationship did not exist between the association and the owner.

Editors note:  §83.62(2) states “neither the sheriff nor the landlord or the landlord’s agent shall be liable to the tenant or any other party for the loss, destruction, or damage to the property after it has been removed.”   Thus,  there may not be immunity in the event that the tenant’s property is not removed upon execution of the writ of possession.

The appellate court also noted that they were not suggesting the owner would prevail,  only that he had a cause of action for conversion of his property.

Ice v. The Cosmopolitan Residences on South Beach  No. 3D15-2787,  Third District Court of Appeal State of Florida December 13, 2017

Advertisements